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COMMENTARIES 


ON 


EQUITY  JURISPRUDENCE 


Hon.    Mr.    JUSTICE    STORY,    LL.D. 

Sometime  one  of  the  Justices  of  the  Supreme  Oourt 
of  the  United  States. 


THIRD     ENGLISH     EDITION, 


BY 

A.     E.    RANDALL 

of    Lincoln's    Inn,    Barrister  -  at  -  Law. 


LONDON : 

SWEET     AND      MAXWELL,     LIMITED, 
3    CHANCERY    LANE,    W.C.  2. 

SYDNEY,  N.S.W.  : 

LAW  BOOK  CO.  OF   AUSTEALASIA, 

Limited, 


TOEONTO,  CANADA: 

THE    CAESWBLL    COMPANY, 

Limited, 

145-149   Adelaide   Street   West 


51-53   Elizabeth  Stbebt. 
1920. 


51J.il 


PRINTED  BY 

THE   EASTERN   PRESS,   LIMITED, 

LONDON  AND  READING. 


PEEFACE  TO  THE  THIKD  ENGLISH  EDITION. 

My  main  difficulty  in  preparing  this  edition  was  how  to  deal 
with  the  author's  text.  It  is  a  recognised  classic,  and  many 
passages  have  been  adopted  judicially.  At  the  same  time 
there  are  many  statements  which  have  been  allowed  to 
stand  in  previous  editions,  and  which  could  not  be  supported 
at  the  present  day.  To  allow  the  original  text  to  remain 
unmodified  would  clearly  mislead  the  student  without  assisting 
the  practitioner. 

Let  me  give  one  or  two  examples.  Founding  himself 
upon  a  dictum  of  Lord  Hardwicke,  the  author  asserted  that 
"  common  sailors  "  in  the  mercantile  and  naval  service  required 
guardianship  during  the  whole  course  of  their  lives,  and 
received  special  consideration  in  courts  of  equity  in  relation 
to  their  bargains.  But  people  in  humble  positions  have 
shown  the  astuteness  of  the  plaintiff  in  Armory  v.  Delamirie 
(1722)  1  Stra.  504.  Again  Jenkins  v.  Kemis  as  reported  in 
1  Ch.  Cas.  103  could  never  have  survived  the  distructive 
criticism  of  Lord  St.  Leonard's  assuming  that  it  was  law 
in  the  author's  day.  See  Mamell  v.  Blake  (1816)  4  Dow.  248 ; 
16  R.R.  36.  So  too,  the  accountability  of  one  co-owner  to 
another  (be  they  joint  tenants  or  tenants  in  common)  does 
not  rest  on  a  fiduciary  relationship,  and  the  doctrine  that 
joint  debts  are  joint  and  several  in  equity  was  finally  exploded 
about  forty  years  ago. 

I  have  frequently  had  occasion  to  comment  on  the  practice 
which  has  persisted  of  supplementing  the  text  by  footnotes. 
Some  editors  have  even  deemed  footnotes  to  be  the  proper 
medium  for  correcting  inaccuracies  in  the  text.  To  paraphrase 
a  passage  from  a  judgment  in  the  text  and  set  out  the  passage 
at  large  in  a  footnote,  is  a  method  of  treatment  which  calls 
for  special  justification,  but  to  cite  identical  passages  from 
a  judgment  both  in  the  text  and  in  a  footnote,  as  happened 


IV  PREFACE. 

in  the  preceding  edition,  is  inexcusable.  I  have  been  able 
to  reduce  the  bulk  of  this  edition  over  that  immediately 
preceding  by  omitting  what  was  redundant  or  unnecessary. 
I  have  at  the  same  time  incorporated  much  that  formerly 
appeared  in  footnotes.  In  a  few  instances  I  have  allowed 
long  footnotes  to  stand,  but  not  without  misgivings  as  to  the 
wisdom  of  that  course  of  treatment. 

The  text  passed  out  of  my  hands  before  the  full  report 
of  Bourne  v.  Keane  appeared.  The  learned  reader  is  requested 
to  note  that  it  is  now  reported  [1919]  A.C.  815. 


A.    E.    EANDALL. 


Lincoln's  Inn, 

December,  1919. 


TABLE   OF    CONTENTS. 


PREFACE 

TABLE  OP  CONTENTS 

TABLE  OP  CASES   . 


PAGE 

iii 

V 

vii 


Chaptek  I. — Nature     and     Chakactek.      of      Equity 

JUBISPRUDENOE 1 

n. — Origin    and    History   of   Equity  Juris- 
prudence      21 

IIL — (Jeneral  View  of  Equity  Jurisdiction     .  32 

rV. — CONCDERBNT   JURISDICTION — ACCIDENT              .  39 

V. — Mistake           51 

VI. — Actual  or  Positive  Fraud          ...  79 

VII. — Constructive  Fraud 99 

VIII. — Account           177 

IX. — Administration 226 

X. — Legacies           253 

XI. — Confusion  of  Boundaries     ....  258 

XII.— Dower 264 

XIII. — Marshalling  of  Securities          .        .        .  267 

XIV.— Partition 273 

XV.— Partnership 282 

XVI. — Peculiar  Remedies  in  Equity — Cancella- 
tion and  Delivery  of  Instruments      .  293 

XVII.— Specific  Performance  of  Agreements  and 

other  duties 304 

XVIII.— Compensation  and  Damages         .        .        .  339 

XIX. — Interpleader           342 

XX.— Bills  Quia  Timet 349 

XXI. — Bills  of  the  Peace 359 

XXII. — Injunctions            363 

XXIII. — Exclusive  Jurisdiction- Trusts         .        .  393 

XXIV. — Marriage  Settlements         ....  403 

XXV. — Terms  of  years 410 


CONTENTS. 


Chapter      XXVI.— Mortgages 

PAGE 

412 

,          XXVII.— Assignments           

430 

,         XXVIII. — Wills  and  Testaments 

442 

,           XXIX.— Election  and  Satisfaction 

450 

,             XXX.— Application  of  Purchase  Money 

470 

,            XXXI.— Charities 

475 

,          XXXII.— Implied  Trusts 

504 

,         XXXIII. — Penalties  and  Forfeitures 

544 

XXXIV.— Infants 

557 

,           XXXV. — Idiots  and  Lunatics    .... 

572 

,         XXXVI.— Married  Women           .... 

575 

XXXVII.— Set-off 

601 

,      XXXVIII.— Establishing  Wills 

611 

XXXIX.— Awards 

614 

,                XL. — Writ  of  Ne  Exeat  Regis  and  Supplicavit 

620 

INDE 

,               XLI.— Discovery  and  the  Practice  employed  to 
Preserve  and  Pekpetuate  Testimony 

X 

626 
643 

TABLE    OF    CASES  (a) 


PAOE 

Aas  ».  Benham  285 

Abbott    Fund,    In    re ;    Smith    v. 

Abbott     505,  507 

Abergavenny   (Earl)  v.  Powell  ...     640 

Abernethy  v.  Hutchinson  285,  386 

Abraham  v.  Budd  374 

Ackroyd  v.  Smithson  337 

Acton  0.  Pearce  61 

V.  Woodgate  397,  430 

Adair  v.  Shaw  260,  251 

Adam's  Trust,  In  re  541 

Adam  v.  Newbigging  ...  79,  82,  84,  295 
Adams    and    Kensington    Vestry, 

In  re   447 

Adams  v.  Claxton  171 

V.  Clifton     535 

Adderley  v.  Dixon  ...  305,  307,  314,  340 

Addington   v.   Cann   494 

Adey  v.  Whitstable  Co 215 

Adye  v.  Feuilleleau 534,  535 

Agar  Ellis,  In  re ;  Agar  Ellis  s. 

Lascelles    564 

V.  Fairfax  273,  276,  279 

■  V.  AUacklew    616 

Agnew  V.  Pope  463 

Agra  Bank  v.  Barry  160,  161 

Aislabie  u.  Eice  120 

Albert  (Prince)  v.  Strange  389 

Aldborough   (Earl)  v.   Trye     142, 

144,  145,  294 
Aldrich  v.   Cooper  199,   209,   212, 

236,  239,  240,  241,  242,  244,  267,  268 

Aldridge  v.  Westbrook  232 

Allan  V.  Allan  637 

V.  Backhouse  201,  444 

V.  Bower  322,  323 

AUcard  v.  Skinner  127,  136 

Allen  V.  Anthony 161,  163 

V.  Coster      568 

V.  Harding      308 

V.  Jackson   117 

V.  McPherson  ...  79,  98,  176,  611 

AUeyn  v.  AUeyn 459 

Allfrey  c.   AUfrey  223 

Allison  V.  Clayhills   130,  132 

AUsop,  In  re;  Whitaker  v.  Bam- 

ford  533,  534 


PAGE 

Amber   Size    &    Chemical    Co.    v. 

Eanzel    389 

Amesbury  v.  Brown  201 

Ancaster  (Duke)  v.  Mayer  246 

Anderson  v.  Anderson  287 

V.  Elaworth     301 

Andrews  v.  Bamsay  192 

1).  Trinity  Hall  455 

Angel  ij.  Smith  352,  353 

Angell  V.  Angell  636,  638 

Angier  v.  Angler     594 

Anglo-Italian  Bank  v.  Davies  351,  353 
Anon  (3  Atk.  644)  617,  633 

(1   Bro.   C.C.   158)    67 

(1  Ch.  Gas.  207)    479 

(1  Ch.  Cas.  267)  ...  480,  488,  492 

(2  Ch.  Cas.  337)  220 

(1  Freem.  303)  220 

(2  Freem.  27,  128,  145,  206) 

220,   317,  356 
(2  K.  &  J.  441)  287 

-  (6  Madd.  10—15)  390,  425 

(F.   Moo.)    20 

(4  Euss.    473)    571 

(2  Sim.  N.S.  54)  564 

(3  Swanst.)     279 

(1   Vern.   162)    527 

(1  Ves.  Jun.  93)  391 

(6  Ves.  470)   322 

(12  Ves.  4)  354 

(5  Vin.  Abr.  523)  322 

Aroedeckne,     In     re ;     Atkins     v. 

Arcedeckne     208 

Archer's  Case  181,  406,  407 

Archer  v.  Hudson  129 

V.  Preston    313 

Arglasse  v.  Muschamp     313,  643 

Armitage  v.  Wadsworth  40,  297 

Arnott,  In  re  632 

Arnsby  v.   Woodward   554 

Arrowsmith,   Ex   p 422 

Arthington  v.  Fawkes  360 

Arthur  v.  Bodenham  432 

V.  Lamb      374 

Arundell  v.  Phipps  302 

Ashburton  (Lord)  v.  Nocton  ...  161,  167 
V.    Pape  385,  386 


(o)  The  references  are  not  to  the  paragraphs  as  in  the  preceding  edition,  but  to" 
the  pages. 


VIU 


TABLE  OF  CASES. 


PAGE 
Aaherman  v.  Tredegar  Dry  Dock 

Co 138,209,309 

Ashley  v.  Baillie 229 

Ashworth  v.  Lord  419 

Aspland  v.  Watt  530,  536 

Asten  V.  Asten     630 

Astley  B.  Weldon   549 

Aston  V.   Aston   374 

V.  Pye      299 

Athill,  In  re;  Athill  v.  Athill  199, 

240,  267,  268 

Atkins  V.  Hatton  261,  262 

V.  Hill 253,  254 

Atkinson  &  Horsell's  Cent.,  In  re    330 

Atkinson  v.  Leonard  41,  622 

1).  Littlewood  460,  462 

Attenborough    v.    St.    Katherine 

Dock  Co 346 

V.  Solomon  280,  250,  254 

Athol  (Earl)  v.  Derby  (Earl)  813 

Att.-Gen.  v.  Bains  494 

V.  Bowyer  478,  483,  491,  493,  495 

V.  Brentwood   School   484 

V.  Brereton  ...  478,  480,  481,  489 

V.  Brunning   235,  236 

V.  Cains   Coll 541 

• V.  Cambridge  Consumers  Gas 

Co 377 

B.  Cambridge     (Margaret     & 

Begins   Prof.)   494 

B.  Chester    (Bp.)    492 

B.  Christ's  Hospital  502 

0.  Clarendon  (Earl)  488 

V.  Clifton     501 

B.  Combe      494 

V.  Dimond       251 

V.  Dixie    484 

B.  Dublin  (Corp.)  ...  177,  178,  484 

«.  Emmerson  376 

B.  Exeter    (Mayor)    501 

B.  Forbes  376,  377 

B.  PuUerton     262 

B.  G-askill 626,  627 

B.  Gleg     494 

B.  Harrow  School  (Governors)  489 

V.  Heelis      501 

B.  Hewer     488 

B.  Hickman     489 

B.  Hubback     288 

B.  Ironmonger's    Co.    ...    492,    499 

V.  Jeames    489 

V.  Lepine     498 

V.  London   (City)   492 

V.  Lonsdale    (Earl)    454 

B.  Lucas      571 

B.  Marlborough   (Duke)   374 

B.  Middleton   480,  489 

B.  Mucklow     621 

v.  Newman      480 

B.  Oglander     492 

V.  Parker     489 


PAGE 

Att.-Gen.  B.  Parmeter     376 

B.  Partington      600 

- —  B.  Peacock      492 

V.  Pearson    489,  501 

B.  Piatt   492,  494 

B.  Price    489 

B.  Bay      68 

i;.  Eichards     876 

B.  Eye  482,  493 

B.  Sheffield    Gas    Consumers 

Co 377,  878 

».  Skinners  Co 488 

V.  Silwell 318 

0.  Smart      489 

V.  St.   John's  Hospital   501 

B.  Stamford   (Earl)   600 

B.  Stevens   260,  262 

B.   Stewart 492 

u.  Sturge     498 

B.  Syderfin 491,  492,  498 

B.  Taucred  479,  481 

V.  Terry 378 

B.  Wax  Chandlers   Co 495 

B.  Whitley       489 

V.  Windsor  (Dean  &  Chapter) 

495,  497 

(Canada)  v.   Standard  Trust 

Co.  of  N.  Y 132,  529 

Attwood  B.  Small 82,  83 

Atwood  B.  Maude  46,  195 

Auriol  B.   Smith  617 

Austen  b.   Taylor   398 

Austin,  In  re;  Chetwynd  b.  Morgan    38 

B.  Chambers    130 

Austria   (Emperor)  b.  Day  388 

Averall  b.  Wade  171,  198,  268,  270,  513 

Awde  B.   Dixon   69 

Ayerst  b.  Jenkins  :...  128,  124,  296 

Aylesford  (Earl)  b.  Morris  142,  144,  296 

Aylwin   b.    Withy   208 

Aynsley  b.   Wordsworth   198 

Baber's  Teubt,  In  re  430,  435 

Baber  b.  Harris  577 

Baohford  b.  Preston   122 

Bacon  b.   Clark   532 

Baggett   B.   Meux   599 

Bagot,  In  re;  Baton  b.   Ormerod    454 

Bailey  b.  Barnes  165,  169 

B.  Ford     287 

B.  Hobson    374 

Bain  v.  Sadler  235,  288 

Bainbridge  v.  Smith  76 

Bainbrigge  b.  Blair  351 

B.  Brown     X29 

Baker  b.   Salmon,  In  re  330 

.  S^  P 573 

,  In  re;  NichoUs  b.  Baker  231,  233 

Baker's  Trusts,  In  re  573 

Baker  b.  Adams  609 

B.  Bradley       129 


TABLE  OF  CASES. 


PAGE 

Baker  v.  Monk    98,  141 

V.  Mosley     448 

V.  Paine      70 

V.  Rogers     ■ 361 

Balfour  v.  Welland  470,  473 

Ball  V.  Harris  473 

V.  Montgomery      594 

V.  Stone  71,  294 

Ballard   v.   Tomlinson   378 

Banks  v.  Jarvia  609 

Barber,  In  re;  Burgess  v.  Virmi- 

come 136 

Barclay,  In  re;  Barclay  v.  Andrew  536 

Barfield  v.  Nicholson  391 

Baring   v.    Day    214 

V.  Dix      287 

V.  Nash     276,  277,  279,  280 

V.  Stanton      133 

Barker  v.  Dacie  218 

V.  Keete      506 

V.  May  230,  235 

V.  Perowne      197 

V.  Eichardson     440 

Barkshire  v.   Grubb   70 

Barnard's  (Lord)  Case  374 

Barnes  v.  Eacster  ...  200,  240,  241,  268 

Barnett  v.  Weston  158,  178 

Barnesdale  v.  Lowe  639 

Barnett,  In  re;  Daves  v.  Ixer  ...  47,  77 

Barrett  v.  Beckford   468 

Barrow's  Case  168,  530 

Barrow  v.  Barrow  70 

V .  Greenough      107 

V.  Isaacs   &   Son   554 

Barrow  in  Furness  &  Rawlinson's 

Cont.,  In  re  443 

Barry   v.    Stevens   191 

Bartlett  v.  Hodgson  540 

V.  Pentland     74 

Barwick   v.    English   Joint    Stock 

Bank      84 

Baskerville  v.  Browne  607 

Basingstoke  (Corp.)  v.  Lord  Bolton  263 
Bate  V.  England  (Bank)  136 

V.  Hooper   51,   52 

Bateraan   v.    Bateman    444 

Bates  V.  Graves  612 

Bath  (Earl)  v.  Sherwin 40,  361 

V.  Standard   Land   Co 136 

Bathurst  «.  Murray  570,  671 

Batten  c.  Earnley  357 

Battersby  v.  Parrington  149,  152 

Batthyany  v.  Walford  216 

Baudains  v.  Eichardson   130 

Baxendale  v.  Scale     71 

Bax,  Ex  p 181 

Baxter  v.  Connoly  307 

Bayley,    Ex   p 195 

Baynum  v.  Baynum  624,  625 

Beale  v.  Kyte  68,  69 

Beard  v.  Beard  578 


PAGE 

Beauchamp  (Earl)  v.  Wynn  57 

Beaufort   (Duke)   v.   Berty  558 

Beaumont   v.    Olivera    224 

V.  Eeeve      123 

Beavan  v.  Oxford  (Earl)  171 

Bechervaise  ».   Lewis   605 

Beckett  v.  Cordley  157 

Beckley  v.  Newland  333,  422 

Beddall  v.  Maitland  610 

Beddow   v.   Beddow   617 

Bedford  (Duke)  v.  Abercorn  (Duke)  70 

V.  British  Museum   (Trustees) 

311,  315 

Bedford.  D.   Backhouse   166 

Bedouin,  The  93 

Beech  ».  Ford  301 

Beechcroft   v.    Broome    447 

Beeny,  In  re;  Ffrench  v.  Sproston  361 

Beeston  o.   Booth   237 

Beidley   v.    Carter   57 

Belchier,  Ex  p 533 

Belfast    (Earl)   v.   Chichester   637 

Belfield  v.  Bourne  46,  195 

Bell  V.  Alexander   44 

V.  Gardiner     86 

V.  Holtby     57 

V.  Marsh   130,   132,  156 

Bellairs  v.  Tucker  85 

Bellamy  v.  Debenham   331 

V.  Jones    638 

V.  Sabine  ...  58,  69,  129,  166,  370 

Bellasig  v.  Uthwatt  459 

Bellhaven's   (Lord)  Case  59 

Bellwood  V.  'Wetherell  634 

Benbow  v.  Townsend  ...   397,  606,  508 

Bending  u.  Bending  455 

Benfield   v.    Solomons    126 

Bengough  v.  Walker  460 

Benham  v.  Keane  161,  167 

Bennet   v.    Whitehead    216 

Bennett,  Ex  p 136 

V.  Hayter     492 

V.  Wyndham      444 

Benningfield  v.  Baxter  136 

Benson  v.  Heathorn  128,  132,  192 

Benyon   c.    Pitch    144 

Bernard  ».  MinshuU  447 

Berney  v.    Sewell   364 

Berridge  v.  Berridge  138,  208 

Berrisford   v.    Done    48 

Bertie  i>.  Abingdon  (Earl)  354 

Berwick  &  Co.  v.  Price  167 

Besant,  In  re  564,  566 

V.  Wood  31,  368,  665,  596 

Bethune  v.  Kennedy  196 

Beverley's  Case  96,  557,  569,  561 

Beverley   (Corp.)   v.   Att.-Gen.    ...  497 

Beynon  v.  Cook  37 

Bidder  v.  Bridges  638,  639 

Biederman   d.    Seymour    243 

Biggs  V.   Peacock   280 


TABLE  OF  CASES. 


PAGE 

Bigland  v.   Huddlestone   452 

Bilbie   v.   Lumley   61 

Bill  V.   Curetou   151 

■».  Kynaaton    255 

V.  Price    145 

Billage  v.   Southbee  132 

Bingham  v.  Bingham  56,  57 

Birch  V.   Ellames   160 

Birchall,  In  re;  Birchall  v.  Ashton    399 

Birmingham  v.   Kirwan   452 

Birmingham  &  Dist.  Land  Co.  and 

Allday,  In  re  311 

Birtwhistle  v.  Vardill   252 

BiBcoe  V.  Perkins  407,  408 

Bishop  V.   Church  72 

Bissell  V.  Axtell  231 

Blackburne  «.  Gregeon  515,  519 

Blackford  v.  Christian  97 

Blackmoor   v.    Mercer   249 

Black    Point     Synd.     ».     Eastern 

Concessions  Co 263 

Blackwell   v.   Wood   107 

Blackwood    v.    London    Chartered 

Bank  of  Australia   159 

V.  Eeg 252 

,  Ex  p 601 

Blagden  v.  Bradbear  318 

Blake  v.   Blake   ; 230 

V.  Luxton    406 

V.  Peters      373 

Bland,  Ex  p 513,  523 

Blandy  v.  Widmore  460,  461 

Blenner  Lassett  v.  Day  616 

Blewitt,   In  re    573 

Bloomer  v.  Spittle  326 

Blore  V.   Sutton   339 

Blockley,     In     re ;     Blockley     v. 

Blockley     467 

Blow,   In   re;    St.    Bartholomew's 

Hosp.  V.  Campden     533 

Blundell,     In     re ;     Blundell     v. 

Blundell  460,  462 

Blyth  v.  Whiffin  183,  184 

Boardman  v.  Mosman  539 

Boddington,  In  re;  Boddington  v. 

Clariat    78 

Bodenham  v.  Purchas  185,  188 

Bogue  V.  Houlston    383 

Bold  V.   Hutchinson   70 

Bolton    (Duke)   u.   Williams    345 

Bolton  V.  Cooke  205,  207 

Bonar  v.  Hutchinson  137,  138 

Bond  V.   Hopkins   14 

11.  Walford  71,  295,  299 

Bone  V.  Cook  635 

Bonhote  v.  Henderson  68,  70 

Bonnard  v.  Perry  man  389 

Bonser   v.    Cox    240 

Boone's   Case   228 

Booker  v.  Allen  463 

Booth  V.  Eich  424 


PAGE 

Bootle  V.  Blundell  245,  246,  444,  625,  612 

Bor  V.  Bor   456 

Borell  V.   Dann   101 

Bosanquet  v.  Dashwood  ...  126,  127,  179 

V.  Wray   186,   188,   290 

Boston  Deep   Sea  Kshing  Co.  ■». 

Ansell      133 

Bothamley  c.   Sherson  243 

Bourgeoise,  In  re  569,  662,  571 

Bourke  o.  Davis  45 

Bourne  v.  Bourne  337 

V.  Keane  489,  498 

Bouverie   v.    Prentice    262 

Bovey  v.  Smith 168,  530 

Bowen  ».  Phillips  364 

Bower,  In  re;   Lloyd  Phillips   v. 

Davis      501 

Bowes  v.  Bowes  112 

V.  Heaps  97,  101,  139,  141 

Bowker  v.  Bull  138 

Bowlby,  In  re;  Bowlby  v.  Bowlby  569 
Bowman  v.  Secular  Soc.,  Ltd  382,  489 

Bowser   o.    Colby   554 

Bowsher    u.    Watkins   365 

Bowyer  v.  Bright  332 

Box   V.   Barrett    454 

Boxall   1).    Boxall    694 

Boyd  V.  Allen  280 

-  t>.  Boyd    467 

».  Hind    164 

Boyse  v.  Rossborough  ...  128,  130,  613 

Bozon    V.    Williams    421 

Brace    v.    Marlborough    (Duchess) 

170,  171,  172,  428,  612 

Bracebridge    u.    Buckley    553 

Brackenbury  v.   Brackenbury  123,  296 

Bradbury  v.  Hotten  383 

Bradford  (Earl)  v.  Eomney  (Earl)  69 
Bradshaw,    In    re;    Bradshaw    v. 

Bradshaw  106,  443 

B.  Bradshaw      ^ 568 

Braithwaite,   In   re ;   Braithwaite 

t).  Wallis   230 

V.  Britain    471 

V.  Coleman      609 

Bramwell  ».   Halcomb   382,  384 

Brandt's   Sons   &   Co.   v.    Dunlop 

Rubber  Co 436,  436 

Brecon  (Mayor)  v.  Seymour    171 

Breedon  v.  Breedon  478 

Brenchley  v.  Higgins  141,  142 

Brentwood  Brick  &  Coal  Co.,  In 

re      519 

Breton's  Estate,  In  re ;  Breton  v. 

Woolven     61 

Brewer,   Ex   p 567 

Brice  u.  Bannister     432 

V.  Brice    467 

».  Stokes      537 

Bridge   c.   Brown    569 

Bridges   ».   Longman    444 


TABLE  OF  CASES. 


XI 


Bridgett,  In  re;  Cooper  v.  Adams  289 

Bridgman  o.   Green   107 

Bridgewater   (Duke)   v.    Edwards  263 

Bridgman's  Trust,  In  re  541 

Briggg  v.  Massey  191 

V.  Penny      448 

Bright  V.   Boyd   523 

Bristow  V.  Warde  451,  453 

Bristowe  v.   Needham   353 

Britain  v.  Kossiter  319 

British  S.  Africa  v.  De  Beers  Con- 

Bolidated  Mines   369 

Broadhurst  v.   Balgay   539 

Brbderick,   Ex   p 421 

V.  Broderick    93 

Brogden,      In     re;      Billing      v. 

Brogden  191,  535 

Bromley  v.   Holland  41,  42,  293, 

294,  295,  296,  297 

V.  Smith      141 

Brook  V.   Hook    127 

Brooke  v.  Enderby  185,  188 

Brookes,  In  re ;  Brookes  v.  Taylor  534 
Brooking  v.  Maudslay  Son  &  Eield 

297,  636 

Brookman  v.  Rothschild  529 

Brooks  0.  Reynolds  233,  234 

Brooksband,  In  re;   Beauclerk  v. 

James     456 

Brophy  v.  Bellamy     568 

Brown,  In  re;  Dixon  v.  Brown  ...  62 
^  c.  Brown.     ". 297 

V.  Collins     567 

V.  Heathcote    520 

V.  HiggB      48,  74,  106,  443 

V.  Kennedy 129 

V.  Pring     59 

V.  Selwin     511 

V.  Tapscott  ,   213 

V.  Vermuden     360 

V.  Wales     298 

V.  Yeale     485 

Brown's  Will,  In  re     119 

Browne  v.  Lee     204 

V.  Rye     233 

V.  Savage   437 

Brownell  v.  Brownell    222,  224 

Brownlie  v.  Campbell    83 

Bruner  v.  Moore     329 

Brunker,  Ex  p 621,  622 

Bryant  &  Barningham,  In  re  330 

Bryson  v.  Whitehead     121,  307 

Buckle  V.  Atleo    231 

Buccleuch   (Duke)  v.  Met.  Bd.  of 

Works     615,  616 

Buchanan  v.  Buchanan     593 

Buck  V.  Robson    432 

Buckeridge  v.  Whalley     222 

.Buckle  V.  Mitchell    147,  294 

Buckmaster  v.  Harrop     319 

Buden  v.  Dore     630 


PAGE 

Bull  V.  Faulkner     215 

BuUer  v.  Plunket     437 

Bullock  V.  Downes     56 

Bunbury  t>.  Bunbury     631 

Bunn  V.  Markham    256,  257 

Burchell  v.  Wild     388 

Burden  v.   Barkus      286 

Burford  (Corp.)  v.  Lenthall     177, 

182,  360 

Burges  v.  Mawbey     202 

Burgess  c.  Burgess     387 

V.  Wheate     10,  34,  505 

Burke  v.  Smyth    307,  309 

Burley,     In     re;     Alexander     v. 

Burley     447 

Burn  V.  Carvalho  432,  435,  436 

Burnet  v.  Burnet 568 

Burns'  Application     86 

Burrough  v.  Philcox     74 

Burroughs,  In  re     573 

V.  Elton      173 

Burrows  r>.  Walls    535,  539 

Burstall  v.  Beyfus    626,  630,  633 

Burton  v.  Pierpoint    242 

Bush  V.  Western     , 362 

Bustros  V.  White    31 

Butcher  v.  Butcher     106 

Bute    (Marq.)    v.    Glamorganshire 

Canal  Co 258,  260,  262,  263 

Butler  and  Baker's  Case    226 

Butler  V.  Butler  576,  598 

V.  Freeman     559 

J).  Wigge     546 

Buttanshaw  v.  Martin     401 

Button  V.  Thompson     194 

Buxton  V.  Lister   301,  306,  326 

Byrchall  ».  Bradford     536 

Bym  V.  Godfrey     511 

Caddick  v.  Skidmore     319 

Cadman  v.  Horner     86 

Cadogan  v.  Kennett    147,  150,  391 

Cain  V.   Moon      256 

Caird  v.  Syme    385,  386 

Calmady  v.  Calmady     276 

Calverley  v.  Williams    .; 63,  64 

Camden  (Marq.)  v.  Murray     570 

Cameron  and  Wells,  In  re     405 

Campbell  v.  French 78,  589 

V.  Holyland     256 

V.  Hooper    95 

t).  Home     106 

V.  Mackay     '563 

V.  Macomb     271 

V.  MuUett     289,  527 

V.  Rothwell     209 

V.  Sanders     405 

V.  Scott    382 

V.  Twemlow     616 

V.  Walker    135 

Cane  v.  Allen  (Lord)     130 


TABLE  OF  OASES. 


PAGE 

Cann  v.  Cann     52,  55,  68,  59 

Cannam  v.  Parmer     101 

Cannel  v.  Buckle    61,  576,  577 

Canterbury  (Archb.)  v.  House    ...     229 

^ V.  Wills 228,  229 

Cantiere  Meccanico  Brindisino  v. 

Jansen      93 

Capon's  Trusts,  In  re    106 

Capper  v.  Spottiswoode     518,  519 

Carey  v.  Faden    384 

Carnan  c.  Bowles     384 

Carlisle  (Corp.)  v.  Wilson  177,  182,  360 

Carr's  Trusts,  In  re    590 

Carr  v.  Bastabrooke    468,  592,  595 

Carriage  Co-op.  Supply  Assn.,  In  re   606 
Carritt  u.  Real  and  Personal  Ad- 
vance Co 37,  159 

Carrou  Iron  Co.  ■».  Maclaren     ...     369 

Carrow  o.  Ferrior     354 

Carter  v.  Carter     76 

V.  Palmer     130,  133 

V.  Wake    427,  428 

V.  White     138 

Carteret  v.  Petty  263,  369,  542 

Cartwright,  In  re;  Avis  v.  New- 
man         373 

V.  Cartwright      120 

V.  Green     631 

D.  Pultney    277,  280 

Carver  v.  Bowles    451 

Carwe's  Estate,  In  re    121 

Cary  v.  Abbott    491 

Casamajor  v.   Strode      330 

Casborne  v.  Searfe     418 

Castell,  Ex  p 291 

Caetelli  v.  Cook     391 

Catling  0.  King     318 

Cathcart,  In  re    672 

Catchside  v.  Ovington     228,  229 

Caton  V.  Caton     318,  325 

o.  Eidout     586 

Cator  V.  Bolingbroke     519 

«.  Cooly     166 

Cave  V.  Mills    224 

Cavendish  v.  Greaves     224 

Cavendish  Bentinck  v.  Fenn  ...  82,  137 

Cawdor  (Lord)  v.  Lewis    606 

Central     Bly.     of     Venezuela     v. 

Kisch      86 

Chace  v.  Westmore     616 

Chadwick  v.  Turner  162, 165 

Chalmer  v.  Bradley    :..    223 

Chamberlaine  v.  Chamberlains  300,  332 

Chamberlain  v.  Durnmer     372 

Chambers  v.  Goldwin    221,  222 

Champion,  In  re  ;  Dudley  v.  Cham- 
pion          528 

V.  Eigby     127 

Chancey's  Case    468 

Chandelor  v.  Lopus     86,  91 

Chaplin  v.  Chaplin     245,  469 


PAGE 

Chapman  v.  Chapman     421 

V.  Esgar     238 

B.  Koops     290 

V.  Perkins     107,  117,  119 

V.  Tanner     515 

Charter  v.  Watson    427 

Chase  v.  Westmore    214 

Chatham  v.  Hoare     105 

Chatterton  o.  Cave     382,  384 

Chattock  V.  MuUer     332 

Chavany  v.  Van  Sommer     286 

Chawner's  Will,  In  re     444 

Cheale  v.  Kenward     308 

Chedworth  (Lord)  u.  Edwards  370,  390 

Cheesman  v.  Price     285 

Cherry  v.  Mott     497 

Cheslyn  v.  Dalby    614 

Chesterfield's   (Earl)  Trusts     196 

V.  Janssen     79,  81,  82,  83, 

101,  109,  140,  141,  143,  144 
Chesham  (Lord) ,  In  re ;  Cavendish 

V.  Dacre     455 

Child  V.  Comber     318 

u.  Godolphin      318 

v.  Mann     347 

Childers  c.  Childers     507,  508 

Cholmondeley  o.  Cholmondeley  ...     447 

V.  Clinton  35,  389,  399,  426 

V.  Oxford     638 

Christ's  College  (Case)     493 

Christ's  Hosp.  v.  Grainger     601 

n.  Hawes     493 

Christie  o.  Courtenay  ...  235,  505,  508 

V.  Craig     391 

v.  Gosling      405 

Chudleigh's  Case    395,  406,  407 

Chumley,   Ex  p 573 

Church   Estate   Charity;    Wands- 
worth, In  re     492 

Churchill  v.  Churchill     451,  4-57 

Clancarty  (Lord)  v.  Latouch     ....    224 

Clapham  ».  Shillito    86 

Clarendon  (Earl)  v.  Barham  ...  240,  241 

V.  Hornby    278,  279 

Claringbould  ».  Curtis     309 

Clark  J).  Abingdon  (Lord)    551 

V.  Cort     603,  604 

V.  Grant     71 

V.  Hackwell      317 

Tj.  Eoyle     621 

Clarke  v.  Hart     665 

0.  Ormonde    (Earl)    234 

V.  Parker     ....  107,  117,  118,  119 

V.  Eamuz     335,  514 

t).  Eichards     610 

V.  Sewell     468,  459 

V.  Tipping     190 

V.  Wright    321 

Clavering's   Case      625 

Clay  n.  Willis     235 

Clayton's  Case     185,  187,  188 


TABIiB  OF  CASES. 


xm 


PAGE 

».  Rees      435 

Clergy  Orphan  Corp.,  In  re    487 

Clifford  V.  Brooke    339 

».  Praucis     492 

V.  Turrell     339,  340 

Clifton  V.  Burt    240,  241,  243 

Clinan  v.  Cooke     319,  320,  821 

Cloutte  V.  Storey     58 

Clowes  V.  Higginson     71,  312 

Clvm's   Ca^e      195 

Clutterbuck  v.  Clutterbuck    525 

Coakes  v.   Boswell      65 

Coates  V.  Clarence  Ely.  Co 378 

Cochrane  v.  Moore   300,  317,   397 

Cock  o.  Eichards    112,  113 

Cockburn  v.  Edwards    61,  131 

Cocking  V.  Pratt     55,  63 

Cocks  V.  Smith     504 

Cockshott  V.  Bennett     153 

Coffin  i,.  Coffin     374 

Cogan  V.  Duffield     70 

Coham  v.  Coham     562 

Colburn  v.   Sims     380 

Cole  V.  Gibson     110 

V.  White     321 

Coleman  c.  Mellersh     222 

Coles  V.  Pilkington     312,  320 

».  Trecothick     102,  133,  135 

Collins  0.  Archer    36,  266 

V.  Collins     519 

Collins  Co.  V.  Brown     388 

V.  Curwen     888 

CoUinson's  Case     479,  482,  493 

CoUinson  t).  Lister     165 

CoUyer  v.  Burnett     498 

V.  Fallon      520 

Colmer  v.  Colmer     593,  594 

Colman  u.  Orton     632 

Colverson  v.  Bloomfield     622 

Colyear  v.  Mulgrave  (Countess)...     521 
Colyer  v.  Clay 64 

V.  Finch     158 

Comiskey  v.  Bouring  Hanbury  446,  447 
Commercial  Bank  of   Scotland  v. 

Ehind    223,  224 

Commissioner  of  Stamp  Duties  v. 

Byrnes      508 

Compagnie  Financifere   and   Com- 
merciale  du  Pacifique  v.  Peruvian 

Guano  Co 633 

Conington's  Will,  In  re    547 

Consett  V.   Bell      136 

Consolidated   Exploration   &   Fin- 
ance Co.  V.  Musgrave    121,  123 

Const  V.  Harris    285 

Conyers  v.   Abergavenny      360 

Cood  V.  Pollard     518,  519 

Cook  V.  Baker     112 

V.  Collingridge     287 

V.  Field     144 

V,  Fountain      504 


PAGE 

Cook  V.  Fryor     71 

V.  Gregson     235,  251 

Cooke  V.  Cholmondeley     612 

V.  Clayworth     96,  293 

V.  Martyn      364 

Cookes  V.  Cookes    190,  192 

Coomber,  In  re  ;  Coomber  v.  Coom- 

ber    128,  130 

Coope  V.  Twynam    205,  207 

Cooper,  Ex  p 47 

,  In  re;  Cooper  v.  Vesey 250 

V.  Cooper  455,  457 

V.  Evans       212 

V.  Kynoch      403 

V.  Martin       77 

c.  Phibbs     52,  67 

Cope  V.  Cope    245 

Copis  V.  Middleton  102,  148,  149, 

150,  210 

Copland  v.  Toulmin    185 

Corbett  c.   Corbett      546 

Corder  v.   Morgan      425 

Cornwall,  In  re    239,  240 

V.  Henson      327 

Corley  v.  Stafford    129,  130 

Corser  -c.  Cartwright     444,  473 

Cory  o.   Cory     96 

V.  Yarmouth    and    Norwich 

Ely 378 

Coslake  v.  Till     307 

Cosnahan  v.  Grice     266 

Costa  Eica  Ely.  v.  Forwood  137 

Cothay  v.  Sydenham     158 

Getting  V.  Keighley     222 

Cotton  I!.  Cotton     577 

Couldey  v.  Barkieve     377 

Coulson  V.   White      377 

Counter  v.  Macpherson     49 

County  Life  Assoc.,  In  re    52 

Courtenay  v.  Williams    436,  438 

Couturier  v.  Hastie    63 

Cousins,  In  re     164 

Coventry  v.   Barclay      223 

(Mayor)   v.  Att.-Gen 541 

Cowles  V.  Gale     329 

Cowper  V.  Clerk    360,  361 

V.  Cowper     9,  18 

V.  Laidler      378,  379 

Cox  (Creditors  of  Sir  Charles)  232, 

233,  236 
V.   Bennett      570 

V.  Parker     505 

Crabb  v.   Crabb     509 

Crabtree  c.  Bramble    38 

u.  Poole     335 

Crampton  v.  Walker     609 

Cranstown   (Lord)  v.  Johnston  ...  543 

Craven  v.   Stubbins     46,  195 

Crawshay  c.   Maule      285 

V.  Thornton      842,   344,  346 

Craythorne  v.   Swinburne     207 


TABLE  OF  CASKS. 


330 

58 

898 

390 


PAGE 

Croft  V.  Day     387 

V.  Graham      37 

D.  Powell      425 

Crofton  V.  Ormsby     161 

Crooks  V.  De  Vandes     446 

Crosbie  ».   Murray     451 

Crosby  v.  Marriott     622 

Cross  V.   Sprigg     299 

Crossling  v.  Crossling    75 

Crowder  v.  Austin     121 

Crowe  V.  Ballard     127 

V.  Clay      43 

Crowfoot  V.  Gurney    431 

Crozier  v.  Dowsett     233 

Curwys  v.  Colman     394,  447 

Cud  V.  Enlter     303,  308 

Cullingworth  v.  Lloyd    153,  154 

Curl  Bros.  v.  Webster     388 

Curling  v.  Plight      

Cursou  V.  Bellworthy     

Curteis'  Trusts,  In  re    

Curtis  V.  Buckingham  (Marq.)  ... 

V.  Curtis    216,  264,  265,  266 

V.  Perry    ....  33,  34,  78,  507,  556 

».  Price       151 

V.  Eippon     448 

V.  Worthington      508 

Cutter  V.  Powell     194 

Da  'Costa  v.  Davis    546 

V.  De  Paz    489,  491 

V.  Mellish     563 

Dagenham    (Thames)    Dock    Co., 

In  re   549 

Dalbiac  v.  Dalbiac     94 

Dalby  o.  PuUen      330 

Dale  0.   Sollet     603 

Dallas,   In   re      437 

V.  Walls     204 

Dalston  v.   Coatsworth     42 

Dalton,   In  re      567 

Daly   V.   Kelly      870 

Damus'   Case      493 

Danby  v.  Danby     230 

Daniel  ».  Arkwright     47,  52 

V.  Newton      571 

V.  Skipwith     424 

V.  Sinclair    51,  57,  62,  222 

Daniels  v.  Davison    161,  163,  885 

Danvers  v.  Manning      78 

Darbishire  v.  Home      538 

D'Arcy  v.  Blake     398 

Dare  "Valley  Rly.,  In  re    616 

Darley  v.  Darley     578 

Darlington  (Earl)  v.  Bowes     362 

V.  Pulteney      47,   76,   78 

Darlow  v.  Cooper     418 

Dartnall,  In  re ;   Sawyer  v.   God- 

dard     535 

Darvill   o.   Terry      150 

Dashwood  v.  Bithazey     424 


Dashwood  v.  Maguire    219 

V.  Peyton     454 

Davenport  v.  Bishop    398,  405 

Davidson,  In  re;  Mintz  v.  Bourne    497 

Davies  v.  Cooper     90 

...  Dodd      44 

v.  Ga,s  Light  and  Coke  Co.     626 

V.  London  and  Prov.  Marine 

Ins.  Co 92 

V.  Otty     125 

V.  Thomas      517 

V.  Topp     242,  245 

Davis'  (Dr.)  Case     570 

Davis,  In  re;  Davis  v.  Davis     ...     536 
;  Hannen  u.  Hilly  er  491, 

496,  497 

Davis'  Trust,  In  re     498 

Davis  B.  Dysart  (Earl)     298,  631 

V.  Hone     329 

».  Marlborough   (Duke)   121, 

140,   351,   352,   434 

V.  Shepherd     326 

u.  Spurling    ...  223,  224,  470,  539 

V.  Symonds     68 

v.  Turvey     280 

Davy  V.  Pollard     „ 588 

Dawson,  In  re;  Dawson  v.  Jay  ...     571 

V.  Whitehaven    (Bank)    422 

Day  J).  Brownrigg     30,  364 

V.  Luhke 829 

Deakin,  In  re;   Starkey  v.  Eyres    106 

Dearie  v.  Hall    37,  429,  436,  437 

Debenham  «.  Mellon     101 

V.  Ox      109 

Debeze  v.  Mann     464 

De  Carrifere  v.  De  Calonne     622 

De   Clifford    (Lord) ,   In  re;   Lord 

De  Clifford  v.  Quilter    534 

Decks  V.  Strutt    229,  253,  254 

De  Garcia  v.  Lawson     498 

De  Hoghton  v.  Money    435 

Delver  v.  Barnes     615 

Delves  v.  Gray    168 

Demaindray  v.  Metcalf    428,  429 

De  Manneville  v.   De  Manneville 

559,  560,  561 

De  Mattos  v.  Gibson     801 

Dendy  v.  Powell     609 

De  Nicholls  v.  Saunders    418 

De  Nicols,  In  re;    de    Nicols    v. 

Curlier      237 

Dent  V.  Bennett  128,  130,  132,  136 

Denton  v.  Stewart     316,  326,  340 

Denny  v.  Hancock     330 

Denys  v.  Shuckburgh    192 

Derby  v.   Humber      195 

Dering  v.  Winchelsea   (Earl)  193, 

197,  202,  204,  205,  208 

Derry  o.  Peek     79,  88 

Desborough  v.  Harris    847 

Deschamps  v.  Miller     369,  543 


TABLE  OF  CASES. 


PAGE 
Be  Therminnes  v.  De  Bonneval  ...     491 

Devese  v.  Poutet     468 

Devousher  v.  Newenham     362 

Devonshire's  (Earl)  Case    ......  178,  179 

Dibbs  V.   Goren     51 

Dick  V.  Milligan     616 

Dickinson  v.  Barrow     319,  320 

V.  Burrell     435 

V.  Dickinson      473 

Dickson,  In  re     118 

;  Hill  V.  Grant     569 

Dilley  v.  Doig    360 

Dillon  V.  Parker     450,  452,    453, 

455,  456,  457 

Dibrow  v.   Bone      399 

Dimsdale  v.  Dimsdale    : 144 

Dingle  v.  Cooper     37 

Disney  v.  Bobertson    361 

Di  Sora  v.  Phillips     68 

Dive,  In  re;  Dive  v.  Eoebuck  534 

Dixon,  Ex  p 237,  298 

V.  Enoch     34 

V.  Evans      59 

u.  Samuel      454 

Docker  v.  Somes     191,  529 

Doddington  v.  Halkett     524 

Dodkin  v.  Brunt     399 

Dodsley  ».  Kinnersley    312 

V.  Varley     513,  520 

Doe  ■».  Bancks  554 

V.  Davies    74,  421 

V.  Dowell      403 

V.  Emmerson      614 

V.  Guy      253 

V.  Hales      164 

V.  Joinville      448 

V.  Lewis      42 

V.  Manning 147,  174 

V.  Oliver      432 

V.  Smith      448 

Doherty  v.  AUman  218,  219,  373 

Dolman  v.  Nokes    65 

Doloret  v.  Bothschild    ...  305,  306,  308 

Dolphin  V.  Aylward    242,  268 

Dominion   Coal   Co.    v.   Dominion 

Steel  and  Iron  Co 301 

Done's  Case 220 

Donne  v.  Hart     590 

Donnell  ».  Bennett     301 

Dormer's  Case     573 

Dormer  v.  Eortescue    216,  217,  265,  364 

Douglas  V.   Andrews     568 

V.  Baynea      64,   324 

V.  Douglas     457 

V.  Eussell      440 

Dove   B.   Dove      392 

Dover   Coalfields   Extension   Ltd., 

In  re      136 

]5owdale'B  Case    251 

Dowell  V.  Dew    75 

Dowling  V.  Betjemann    298,  306 


PAGE 

Downe  v.  Morris     423 

Downham  v.  Matthews     601 

Downshire     (Marq.)     v.     Sandys 

(Lady)     372,  373 

Dreyfus  v.  Peruvian  Guano  Co.  ...     627 
Drummond  i).  Att.-Gen.   (Ireland)     501 

Drury  v.   Drury      274 

Drysdale  v.  Mace    326 

Du  Barre  v.  Livette     632 

Duberly  v.  Day    590 

Dubois  V.  Hole     576 

Dudley  u.  Dudley     11 

Duffield  V.  Elwes    256 

Duffy's  Trust,  In  re     590 

Dufour  D.   Pereira      334 

Dulwich  Coll.  V.  Johnson    232 

Dunbar  ».  Dunbar      508 

Dunboyne  (Lord)  v.  Mulvihill     ...      96 

Duncan  v.  Campbell     595 

V.  Dixon     100 

V.  Duncan     593,  595 

V.  Lawson      252 

V.  Lyon     607 

».  Worrall      297 

Duncan  Fox   &   Co.   u.   N.    &   S. 

Wales  Bank  208 

Buncombe  v.   Greenacre      590 

V.  Mayer     297 

Duncuft  f).   Albrecht      308 

Dundas  v.  Dutens     152,  325 

Dungey  v.  Angove     345,  346 

Dunlop    Pneumatic    Tyre    Co.     v. 

New  Garage  Motor  Co 552 

Dunn  V.  Eeg 625 

Dunnage  v.  White    55,  60,  96 

Bunne  v.  Boyd     257 

Durham   Bros.   v.   Eobertson   333, 

432,  435,  440 

Durham  (Earl)  ti.  Legard     315 

Dursley  e.  Eitzharding     636,  637 

Dutton  I).  Morrison      289 

V.  Poole       35 

c.  Thompson     300 

Dyer  v.  Dyer    505,  607,  508,  509 

Dykes'  Estate,  In  re     75 

Dwyer   v.   Collins      632 

Dymock  v.  Atkinson     585,  588 

Bast  ».  Cook    455 

E.  &  W.  India  Dock  Co.  v.  Little- 
dale      347 

East  India  Co.  B.  Boddam  40,  41, 

42,  44 

V.  Donald      73 

V.  Neave      73 

Eastern  Concessions,  Ltd.  u.  Black 

Point   Synd 369 

Eastern  Counties  Ely.  v.  Hawkes 

294,  305,  316 

Eastern  Telegraph  Co.  «.  Bent  ...  555 

Eastewoode  «.  Vinoke    458 


XVI 


TABLE  OF  CASES. 


PAGE 

Eastland  v.  Eeynolds     107 

Ebrand  v.  Dancer      507 

Echcliffe  v.  Baldwin    370,  390 

Edge  V.  Worthiugton     421 

Edmunds  v.   Eobinson      195 

Edwards  ii.  Carter     100 

V.  Freeman     467 

V.  Jones     338 

».  Meyrick      129,  130 

V.  Warwick  (Countess)  198 

Eedes  v.  Bedes    591 

Egerton  v.  Brownlow    404 

Eland  v.   Eland      473 

Elderton  (Infants),  In  re   565 

Elibank  (Lady)  u.  Montobeir  587 

EUard  v.  Llandaff  (Lord)    89,  326 

Ellesmere  Brewery  Co.   v.  Cooper 

205,  216 

Elliott  V.  Merryman  249,  471,  472,  473 

Ellice  V.  Eoupell  634,  637,  638 

Ellis  B.  Emmanuel     209 

V.  Kerr      290 

V.  McHenry  (Levita's  Claim)  154 

V.  Munson      610 

V.  Selby      487 

Ellison  V.  Ellison    338 

Elme  Hosp.  v.  Andover    360 

Elton  V.   Shephard     585 

Emma  Silver  Mine  v.  Grant  137 

Emery  v.  Hill     498 

V.  Waae      614 

Emmet  v.  Dewhurst      318 

Emson,  In  re;  Grain  v.  Grain    ...  33 

England  u.  Downs     112 

Ennis,  In  re;  Coles  v.  Peyton    ...  207 

Erlanger  v.  New  Sombrero  Co.  ...  137 

Ernest  v.  Croysdill     528 

Esdaile  v.   Stephenson     330 

Espin  V.  Pemberton  163,  167 

Essell  V.  Hayward     287 

Eseery  v.  Cowlard     71 

Essex  V.   Atkins     684 

Bstwick  V.    Caillaud      430 

Etches  B.  Lance     622 

European  Bank,  In  re     214 

Evans,  Ex  p 353 

,  In  re ;  Welch  v.  Channell  ...  133 

».  Bagshaw    279 

V.  Bicknell   ...  79,  82,  86,  157,  158 

0.  Bremridge      208 

V.  Edmonds     83 

V.  Evans     454,  455 

e.  Llewellin    (or    Llewellyn) 

54,  104,  105 

V.  Merthyr      Tydvil      Urban 

Council      639,  640 

B.  Eosser     117 

Evelyn  v.  Evelyn    245,  247,  445 

Ewer  s..  Corbet     472 

Ewing  V.  Orr-Ewing    251,  542 

V.  Osbaldiston     33,  34 


PAGE 

Eyre  v.  Dolphin     160,  163 

V.  Shaftesbury         (Countess) 

478,  480,  557,  659,  563,  670 
Eyton  V.  Littledale   603 

Fabian  v.  Nunn     321 

Fairbrother  v.  Pratterit   345,  346 

Fairclough  v.  Marshall     418,  421 

V.  Swan  Brewery  Co 417,  420 

Falcke  v.  Gray     306 

V.  Scottish  Imperial  Ins.  Soc.    522 

Falmouth  (Lord)  o.  Innye   362 

Fane  u.  Fane      64 

Faraker,  In  re ;  Faraker  v.  Dicrell    492 

Farewell  v.   Coker      55 

Farhall  v.  Farhall     251 

Farman,  In  re;  Farman  v.  Smith  256 
Farmers'  Mart,  Ltd.  v.  Milner  ...  154 
Parquharson  Bros.  &  Co.  v.  King  157 
Farr  v.   Middleton      520 

V.  Newman     400 

Farrand  v.  Yorkshire  Bank     159 

Farrant  v.  Blanchford     93 

V.  Lovell      373 

Farrer  v.  Hutchinson     105 

Farrington  v.  Knightley     ...     230,  254 

Faulkner  v.  Daniel     200 

Fawcett  and  Holmes,  In  re     331 

V.  Whitehouse    133 

Fawell  V.  Heelis     519 

Featherstonehaugh  v.  Fenwick  ...    287 

Fells  V.  Eeed    298,  302 

Fellows  V.  Mitchell  537,  5.S8 

Fenhoulet  v.  Passavant     243 

Fenton  v.  Browne     86 

V.  Hughes      633 

Fenwick  v.  Bulman     333 

V.  Potts     421 

Ferguson  v.  Wilson     20,  341 

Fermois'  Case     98 

Feme  v.  Bullock     317 

Ferris  v.  Carr    46,  195 

Fettiplace  v.   Gorges      333 

Feversham  v.  Watson     328 

Field  V.  Brown      570 

Fielding  v.  Bound     495 

Finch  V.   Augell      627 

v.  Winchelsea  (Earl)    520 

Finlay,  In  re ;  Wilson   &   Co.   v. 

Finlay     133 

Fitzgerald,  In  re   561 

V.  Falconberg     167 

V.  Fitzgerald    61,  577 

Fitzhugh  0.  Leigh     638 

Fitzroy  v.  Cave    435,  438 

o.Gwillim     126 

Flack  V.  Holm     621,  622,  623 

Flammank,  In  re;  Wood  v.  Cock    586 

Flanagan  v.  G.  W.  Ely 326 

Fletcher  v.  Ashburner     336 

V.  Bealey     850 


TABLE  OF  CASES. 


PAGE 

Plight  V.  Bolland     307,  335 

V.  Carnac     335 

V.  Cook    357,  390 

Flint,  Ex  p 604 

V.  Howard  ...  200,  240,  241,  268 

Flood's   (Griffith)   Case      494 

Flower,  In  re ;  Edmonds  v.    Ed- 
monds           47 

V.  Lloyd      105 

V.  Marten     299 

Foley  V.  Burnell     356 

Follet  V.  Jefferys     632 

Folliot  V.  Ogden     270 

Forbes  v.  Forbes 498 

V.  Jackson     171,  209 

• ».  Peacock     473 

Ford  V.  Fowler    447 

Fordyce  v.  Willis    504 

Forrest  v.  Elwes    307,  529 

V.  Prescott    445,  525 

Forrester  v.  Leigh     243 

Forster  v.  Forster     526 

V.  Hale      323 

V.  Hoggart      330 

Forth  v.  Simpson    214 

Poster  V.  Blackstone     521 

V.  Cockerell      436 

V.  Denny     563 

V.  Donald      287 

V.  Vassall      543 

Fothergill  v.  Fothergill     74 

V.  Eowland      301 

Fountaine  v.  Carmarthen  Ely.  ...      52 
Fowler  v.  Fowler    68,  69 

V.  Garlike      497 

Pox  V.  Mackreth   ...  66,  88,  89,  135,  191 

V.  Star  Newspaper  Co 638 

V.  Wright       145 

Fox  well  V.  Van  Grutten    354,  379 

Frail  -u.  Ellis  518,  519 

Frame  b.  Dawson    320,  321 

V.  Wood      532 

Prampton  v.  Frampton     595 

Prancke,  In  re;  Drake  v.  Francke    233 

Franco  v.  Alvarez    254,  255 

Frank,  In  re    573 

Fraser,  In  re;  Lowther  v.  Eraser    248 

;  Yates  v.  Fraser     498 

V.  Wood      315 

Frederick  v.  Aynscombe     613 

Freeman  v.  Bishop     345 

V.  Cooke      156 

11.  Fairlie     355,  535 

V.  Lomas  602,  603,  604,  605 

V.  Pope      150 

Preke  v.  Carberry  (Lord)     252 

French  v.  Macale    ...  305,  307,  316,  549 

Prewin  v.  Lewis     390 

Friend  v.  Young     188 

Frietas  v.  Don  Santos    183,  184 

Frieze-Green's  Patent,  In  re  78 

E.J. 


PAGE 

Frost  V.   Knight      113 

Fry  v.  Lane     55,  58,  99,  141 

V.  Porter     10,  12 

I/.  Tapson    532 

Fuggle  V.  Bland     353 

FuUager  v.  Clark    82 

'Fuller  V.  Abrahams    121 

V.  Eedman     45,  233 

Purser  V.  Penton   577 

Fyler  v.  Fyler     534 

V.  Fynn      562 

Gage  v.  Acton  577 

Galam  (Cargo  ex)  204 

Gale  V.   Gale   405 

V.  Leckie     284 

V.  Linds      Ill 

Galton   V.   Hancock   245 

Gambart  v.  Ball  383 

Games  u.  Bonner  330 

Garden     Gully     United     Quartz 

Mining  Co.  v.  McLister  555 

Gardner  v.   622 

Garrard  v.  Frankel  65,  73 

V.  Landerdale     (Lord)     430, 

435,  505 

Garth  v.   Cotton   218,  373,  407 

■  V.  Townsend      75 

Garthshore   v.    Chalie    460 

Gartside  u.  Isherwood  98 

Gaskeld   v.   Durdin    166 

Gaskell  ».  Gaskell  279,  435 

Gaunt   V.    Pyermey   377 

Gedye  v.   Matson   209 

Gedge  v.   Trail 355 

Gee  V.  Liddell  138,  299 

V.  Pearse     329 

V.  Pritchard     385,  386 

Gen.  Accident  Assce.  Co.  o.  Noel      20 
Gen.    Assembly    of    Free    Church 
(Scotland)   v.    Overtown    (Lord)    501 

Gent  V.  Harrison  Johns  219 

Gerrard  v.  Clowes  20 

Giacometti  v.  Prodgers  591,  595 

Gibbons  v.  Causil  59 

Gibbs  V.   Guild   35 

Gibson,  Ex  p 624 

,  In  re   573 

V.  Ings  297,  298 

V.  Jeyes   130,  132 

V.  Eussell  97,  132,  136 

».  Seagrim      267 

Giddings  v.   Giddings   512 

Giffard  v.  Hart  354 

Gifford,  Ex  p 52 

Gilbee   v.    Gilbee    573 

Gilbertson  v.  Gilbertson  246 

Gilchrist  Charity,  In  re   487 

Gilchrist  v.  Caton  593 

Giles  V.  Giles  78 

Gillibrand  v.   Goold   473 

b 


XVlll 


TABLE  OF  CASES. 


Gilpin  V.  Southampton  (Lady)  233,  234 

Gimblett,  In  re  149 

Gladstone  v.  Birley  513,  514 

Glenochy   (Lord)  v.  Bosville  403 

Gloucester  (Corp.)  v.  Osborne  490,  505 

Glyn  1).  Duesbury  344 

Goddard  ».  Carlisle  128,  129,  130 

Godfrey   v.   Littells    262 

V.  Poole    174 

V.  Saunders     177 

Godin  V.  London  Assce.  Co 214 

Goldsmid  v.  Goldsmid  ...  107,  460,  461 

Goldsworthy,  In  re   565 

Goodfellow  V.  Burchett  468 

Goodman  v.   Grierson   420 

V.  Sayers  51,  52,  59,  616 

V.  Whitcomb      287 

Goodtitle   v.   Otway   27 

Goodwin  v.  Fielding  127 

V.  Waghorn 421 

Gordon  «.  Gordon  ...  55,  59,  60,  85,  93 

V.  Holland  168,  530 

V.  Horsefall     37 

V.  Selby    420 

Gorringe  v.  India  Bubber  &  Gutta 

Percha  Works  436 

Goswell's  Trusts,  In  re   337 

Goy  &  Co.,  Ltd.,  In  re;  Farmer 

V.  Goy  &  Co.,  Ltd 436,  604 

Graham,  In  re   567 

V.  Londonderry  579,  581 

V.  Oliver      330 

Granard  (Earl)  v.  Dinikin  386 

Grant  B.  Grant  217,  551,  623 

».  Lynam    448 

V.  Mills    518 

Grave  v.  Salisbury  (Earl)  464 

Gray  v.  Churchill  435 

V.  Haig   192,   536 

V.  Mathias      123 

■ V.  Seckham     209 

V.  Smith      388 

Great  Berlin  Steamboat  Co.,  In  re  124 
G.  N.  Ely.  &  Sanderson,  In  re  ...  331 
Great  Western  Ins.  Co.  v.  Cunliffe  133 
G.  W.  Ely.  V.  Birmingham,  &c. 

Ely 390 

V.  Cripps      62 

Greatrex  v.  Greatrex     286 

Green  ».  Bailey  44 

V.  Briggs     192 

V.  Farmer    603 

o.  Green    452,  581 

V.  Howell     286 

B.  Lowes  370,  390 

V.  Paterson      338 

V.  Butherford      488 

V.  Wymer    138 

Greenaway  v.  Adams  316,  326,340 

Greenside  v.  Benson  229 

Greenway,  Ex  p 27,  42 


PAGE 

Greenwood    In    re;    Goodhart    v. 

Woodhead      545 

B.  Frith    232 

Greet'ham  v.  Colton  444 

Gregory  b.  Mighell  321 

B.  Wilson     550 

Gresley  b.  Adderley  355 

V.  Mousley      131 

Gretton  b.  Howard  453,  455 

Greville  ».  Parker  555 

Grey  v.  Grey  505 

Griffies  v.  Griffies  280 

Grifath   V.    Spratley    102 

Griffiths   «.    Evan 448 

Grigby  v.  Cox  584 

Grimes  u.  French  364 

Grinstone,   Ex  p 561 

Grindey,  In  re ;  Clowes  ».  Grindey  5.34 

Grosvenor,   Ex  p 625 

Grove  v.   Bastard   613 

Guest  B.  Homfray  330 

B.  Smythe   130,  132 

GuUan  v.  Grove  76 

GuUey  v.  Cregs   448 

Gumbleton,  Ex  p 624 

Gurnell  B.   Gardner   435 

Gyles  V.  Wilcox  384 

Gynn  ».  Wilcox  384 

Habershos   v.    Bluston    290 

Hacker  b.  Mid-Kent  Ely 333 

Hadley  b.  London  Bk.  of  Scotland  390 

Hagg  ».  Darley  121 

Haigh,  Ex  p 421 

V.  Brooks     102 

B.  Jaggar  218,  375,  379 

Hale  B.  Saloon  Omnibus  Co 545 

Haley  B.   Bannister   568 

V.  Goodson      391 

Halifax  Joint  Stock  Bk.   (/.  Gled- 

hill  151,  154 

Hall,  Ex  p 435 

,  In    re;    Foster    ».    Metcalfe  255 

B.  Cazenove     545 

B.  Hall   286,  300 

V.  Hallett     536 

B.  Hill      468 

B.  Smith      163 

V.  Warren  305,  312,  316 

Hallett    u.    BouseCeld    204 

Halsey  v.  Brotherhood  380 

V.  Grant  314,  332 

Hamilton,     In     re;     Trench     v. 

Hamilton    446 

B.  Houghton    431 

u.  Watson   89,  92 

V.  Wright    136 

Hammerton   v.    Dysart    (Earl)    ...  378 

Hammond  v.  Messenger  441 

Hampden  v.  Hampden  105 


TABLE  OF  CASES. 


XIX 


PAGE 
Hampton,   In  re;   Public  Trustee 

B.  Hampton  390 

Hanbury  v.  Hussey  273 

V.  Walker    ..." 563 

Hancock   v.   Hancock    600 

Hauoomb  v.  Allen  534 

Hannington  v.  Dunchastel  122 

Hankin   v.    Middleditch    638 

Hanley  v.  Pearson  69 

Hansard  v.  Eobinson  48,  44 

Hanson,   Ex  p 60S 

V.  Gardiner     360 

V.  Keating  37,  589,  590 

Harbert's   Case    197 

Hardcastle  v.    Smithaon   220 

Harding  v.  Glyn  48,  106,  443 

Hardwick  v.  Myned  213 

Hardwicke   (Earl)  v.  Vernon  190, 

192,  223 
Hare  &  O'More's  Cont.,  In  re  ...  71 
Hargreavee,  In  re;  Dicks  v.  Hare    265 

Harland   v.   Trigg   447 

Harmon  v.   Cannon   52 

Harnett  v.  Yielding  324,  826 

Harrington  (Countess)  v.  Harring- 
ton (Earl)  405,  406 

Harrington  v.  Churchward  ...  182,  190 

«.  Long  438,  440 

Harris,   In   re;    Harris   v.    Harris     237 

0.  Beauchamp 351,  352 

V.  Brisco  437,  438 

V.  Cotterell      689 

V.  Pepperell     326 

V.  Eickett     324 

V.  Tremenheere      130 

».  Trueman     628 

Harrison,     In    re ;     Harrison     v. 

Harrison     219 

V.  Austin     74 

V.  Barton     509 

V.  Forth    168 

V.  Guest      140 

V.  Gurney    542 

V.  Harrison  120,  251,  252 

V.  Eutland   (Duke)   377,  379 

V.  Seymour      208 

Harold  v.   Plenty   427 

Harrow  School  v.  Alderton  ...  372,  374 
Hart  «.  Hart  565,  595 

V.  Herwig   806,   391 

V.  Minors     254 

Hartley  v.  Hitchcock  613 

V.  Eice      112 

V.  Enssell    438,   489 

Hartopp  V.  Hartoppp 129 

Harvey,  In  re;  Harvey  v.  Hobday    200 

V.  Aston      119 

V.  Harvey    578 

I).  Mount      99 

Harwood  v.  Tooke  110 

Haslam  &  Hier-Evans,  In  re  180,  629 


PAGE 

Hatch  V.  Hatch  131,  134 

Hatfield  v.  Mine*  467 

Hatton  V.   Car  Maintenance  Co., 

Ltd 513 

V.  Harris    300,  561 

V.  Haywood    353 

Haughton  v.  Haughton 118 

Hawkins  v.  Day  229 

Haythome,    In    re;    Graham    v. 

Massey   268,  313,  869,  549 

Hay's  Case   138 

Hay   V.   Palmer   198 

Hayes  ».  Hayes  357 

V.  Ward   206 

Haygarth  v.  Wearing  86 

Haynes  v.  Eoster  461,  457 

Hays,  Ex  p 669 

Hayward  t).   Hayward  389 

Haywood     v.     Brunswick     Perm. 

Benefit  Bldg.  Soc 811 

V.  Cope  294,  312 

Plead,     In     re.     Ex     p.     Head's 

executors    289 

V.  Head  598,  594 

Heard  v.  Stanford  88 

Heath  v.  Crealock  36 

V.  Hay     188 

V.  Lewis      118 

Heather,  In  re;  Pumfrey  v.  Eryer  462 

Heaton   v.   Dearden   279 

Heffer  v.  Martyn 121 

Hele  V.  Bexley  (Lord)  215 

Heli,  In  re  661 

Helmore  v.  Smith  94,  289 

Henning  v.   Clutterbuck   469 

Henderson  v.  Astwood  419 

Henkle  v.  Eoyal  Assoce.  Co 68 

Hennesey  v.  Bray  227 

Henry  v.  Armstrong  800 

Hensman  v.  Eryer  246 

Henty  v.  Wrey  106 

Hepworth   v.   Hepworth   509 

Hercy   v.   Eerrers    298 

Herman  b.  Charlesworth  109 

Hetley  v.  Morton's  Cont.,  In  re  ...  532 

Hewitt   V.   Foster   639 

B.  Looaemore  167,   158,   162,  163 

Hewson,   In  re   457 

Heywood,   Ex   p 513 

Hibbert   0.   Cooke   623 

Hiern  u.  Mill  160 

Higgin  c.   Liddal   171 

Higginbotham  v.  Hawkins  219,  221, 

389,  340 

Higgins  B.  Betts  878,  879 

».  Hill      144 

B.  Samuels      815 

Hill  V.  Barclay  549,  550,  551,  558,  566 

B.  Boyle      434 

B.  Buckley      314 

u.  Curtis      227 


XX 


TABLE  OF  CASES. 


PAGE 

Hill  V.  Fulbrook     278 

V.  Hart-Davies      388 

V.  Hill     267 

V.  Paul     122,  434 

V.  SimpBon    172,    173,    249, 

250,  472,   528 

Hillary,  In  re  667 

Hilton  V.  Biion  624 

V.  Scarborough    (Lord)    361 

Hinchcliffe   v.    Hinchcliffe    462 

Hine  v.  Dodd  165 

Hinton  v.  Parker  228,  229 

Hirst  V.  Tolson   194 

Hitchcock  V.  Giddings  57,  63,  64 

Hitchman   ®.    Stewart   204 

Hoare,  In  re;  Hoare  ii.  Owen  362,  419 

V.  Brembridge    79 

V.  Colenciu     183,  184 

B.  Osborne       489 

Hobday  v.  Peters  131 

Hoblyn  v.  Hoblyn  129 

Hobson  V.  Bass  209 

V.  Trevor      422 

Hoddel  V.  Pugh  336 

Hodgens    v.    Hodgens    593 

Hodges,  In  re  667 

Hodgkinson  v.  Fernie   615 

Hodgson,  Ex  p 552 

,  In  re;   Hodgson  v.  Fox   ...     606 

V.  Shaw    210 

Hodson   V.   Henland 321 

Hogg  V.   Kirby  380,  387 

Hoggart  V.  Cutts  346,  347 

V.  Scott    330 

Hoghton    V.    Hoghton    129 

Holbird  v.  Anderson  430 

Holbrook  v.  Sharpey  126,  296 

Holden   v.    Hayn    333 

Holding  V.  Elliott  69 

».  Thompson       122 

Holditoh   V.   Mist    270 

Hole  V.  Thomas  374 

Holford,  In  re ;  Holford  v.  Holford     569 

V.  Yate     266 

Holgate  V.    Shutt    222 

Holland,  In  re ;  Gregg  v.  Holland    318 

V.  Holland       540 

V.  Prior    173 

Hollinrake  v.  Lister  550 

HoUis   V.    Bulpitt    221 

V.  Edwards     319 

V.  Whiteing    326 

Holloway  v.  Headington     324 

V.  Millard    149 

Holman  v.  Loynes  129,  130 

Holmes,  In  re  436 

Holmes  v.  Goghill  74,  75 

0.  Matthews    420 

V.  Mentze    290 

Holroyd  v.  Marshall  432 

Holt   V.   Holt   308 


PAGE 

Holtzapffel  v.  Baker  49 

Homan  v.   Moore   346 

Honner  v.  Morton     590 

Honywood  v.  Honywood  219,  376 

Hood    (Lady)   of  Avalon  v.   Mac- 

kinnon 63,  69 

V.  Aston  370,  390 

V.  Phillips      200 

Hood  Barrs,  Ex  p 596,  599 

V.  Cathcart      696 

V.  Heriot  596,  599 

Hooley  v.  Hatton  469 

Hooper,  Ex  p 320,  421 

1).  Keay    188 

V.  Smart      331 

Hope  V.   Carnegie  542 

Hope  Johnstone,  In  re  120 

Hopkins,  Ex  p 563 

,  In  re;  Dowd  c.  Hawkin  ...     354 

V.  Hewsworth     436 

V.  Hopkins      390 

Hopkinson  v.  Burghley   (Lord)   ...     386 

V.  Bolt  171,  172 

Hopwood  J).  Hopwood  463 

Hore  J).  Becher   64 

Horlock,  In  re;  Calham  v.  Sipith    468 

V.  Smith      419 

Home,    In    re;    Wilson    u.    Cox 

Sinclair       49 

V.  Pringle     539 

Horrell   v.    Waldron    229 

Horrocks   v.    Eigby    331 

Horsey  Estate  Co.  v.  Steiger  665 

Horton  v.   Bott   634 

V.  Smith      200 

Horwood   V.    Schemedes    221 

Hotchkis  u.  Dickson  68 

Hotham   v.    Stone    209 

Hovenden  v.  Annesley  (Lord)  35,  225 
How  V.  Bromsgrove  (Tenants)  ...     360 

V.  Vigures      424 

V.  Winterton  (Earl)  399,  633 

Howard  v.   Brownhill   254 

D.  Castle      121 

V.  Digby  (Earl)  580,  586 

V.  Harris    417,   420 

V.  Howard     231 

V.  Papera     354 

Howe  V.  Dartmouth  (Lord)  196 

V.  Smith      327 

Howell  V.  Price  246,  246,  445 

Howells  V.  Jenkins  451,  453 

Howkins   v.   Howkins    623 

Howley  Park  Coal  &  Canal  Co.  v. 

L.   &  N.  W.  Ely  379 

Hubbard  v.  Alexander  469 

V.  Hubbard     280 

Hudson  V.   Granger   214 

V.  Hudson   511,  540 

Huggins,  Ex  p 121 

Hughes'  Trusts,  In  re  436 


TABLE  OF  OASES. 


XXI 


PAGE 

Hughes   V.    Graeme   306 

V.  Kearney  515,  518 

V.  Morris     78 

V.  Science    559 

V.  Walmesley     436 

V.  Wells      77 

Hughes  Hallett  v.  Indian  Mammoth 

Gold  Mines  Co 207 

Huguenin  v.  Baseley  107,  128,  136, 

140,  259,  363,  392 
Huish,  In  re;  Bradshaw  v.  Huish  468 
Hulme  V.  Tennant  ...  101,  583,  584,  586 

Humphreys  v.  Harrison  373,  420 

Hummings  v.   Williamson   631 

Hunt  I).  Luck  163 

V.  Peake      379 

Hunter  v.  Atkins   130 

V.  Att.-Gen 497 

V.  Belcher    224 

•».  Daniel     438 

Hurlbatt  &  Clayton's  Cont.,  In  re      86 

Hurst  V.  Beach  254,  255 

Hutchinson  and  Tennant,  In  re  ...     448 

u.  Heyworth      431 

v.  Massareene    352 

Hyde  v.  Parrat  356 

V.  White      144 

Hylton  V.  Hylton  134 

Hyman   v.   Helm  369 

Impebial  Gas  Light  &  Coke  Co. 

V.  Broabent  377 

Imperial  Loan  Co.  v.   Stone  95 

Imperial   Mercantile   Credit   Assc. 

V.   Coleman   137 

Ind  Coope  &  Co.  o.  Emmerson  36, 

266,  298,  630,  633 
Incorporated   Society   v.    Eichards 

485,  493 

Ingram  v.   Stiff   391 

Inman   v.   Wearing   37 

Inwood  u.  Twyne     570 

Irnham  v.  Child  53,  68 

Ironmongers'  Co.  d.  Att.-Gen.  490, 

491,  492,  495 

Irving  V.  Young  224 

Irwin,  In  re;  Irwin  v.  Parkes  ...      34 

Isaacson   v.    Harwood    540 

Ives  V.  Metcalfe     633 

Jaokman  v.  Mitchell  153,  151 

Jackson's  Will,  In  re 47 

Jackson, t).  Cummins  214,  51-S 

V.  Duchaise     155 

V.  Hobhouse    lO'i. 

V.  Innes      578 

V.  Leap    234 

D.  Petrie      543 

J).  Bowe    36,  165,  633 

Jacques  v.  Millar  340 


FAOE 

James,  Ex  p 136,  512 

V.  Dean    ._. 512 

V.  Kerr  55,  141 

V.  Morgan  81,  545 

Jarrold   o.    Houldston    382 

Jefferson  v.  Durham  (Bp.)  364,  371,  372 

V.  Morton    410 

Jeffery,  In  re;  Arnold  v.  Burt  ...     569 

Jeffreys  v.  Jeffreys  338,  397 

Jeffs  V.  Wood  601 

Jenkins  &  H.  E.  Eandall's  Cont., 

In  re  512 

Jenkins  d.   Moore   98 

Jenner  v.  Harper     493 

V.  Morris     298 

V.  Turner     117 

Jennings  v.  Broughton  87 

Jervis  v.  Berridge  327 

V.  Wolferstan     213 

Jervoise  v.  Northumberland  (Duke) 

401,  403,  404 

V.  Silk      568 

Jessop  V.  Watson  338 

Jeston  1).  Key  309,  310,  404 

Jesus  College  v.   Bloom   217 

Jew  V.  Thirkenell  198 

Jewon  V.   Grant      213 

Jewson  V.   Moulson   588 

Job  V.  Cordeaux  192 

V.  Job      191 

1).  Potton     192 

Jobson  V.  Palmer  532 

Jodrell  V.  Jodrell  197,  579 

Johnson,   In  re   354 

,  In  re;  Sandy  c.  Eeilly  256 

Wragg   ».    Shand    233 

Johnson   v.    Bragge   70 

^—  V.  Child   199,  240 

V.  Curtis  221,  222,  223 

V.  Gallagher   586 

».  Kennet    473 

o.  Legard    174 

B.  Mills    357 

Johnstone  ».  Beattie  662,  666,  867 

Joliffe  V.  Baker  64,  71 

Jones,     In     re;     Parrington     v. 

Forrester  199,  278,  522 

».  Bennett  617 

V.  Chappie      373 

V.  Corry   615 

V.  Croucher  147,  174 

V.  Heavens      305 

V.  Jones 612 

V.  Lewis  191 

V.  Llandaff  Urban  Council        378 

V.  Martin      155 

V.  Merioneth  Bldg.  Soc.  121, 

124,  125 

V.  Monte  Video  Gas  Co.   ...  31 

c.  Morgan   200,  458 

V.  Mossop    605 


TABLE  OF  OASES. 


PAGE 
Jones  V.  North  Vancouver    Land 
&  Imp.  Co 555 

D.  Selby      256 

V.  Smith  ...  86,  162,  171,  427,  428 

V.  Thomas     132,  345 

V.  Waite      120 

V.  Yates       291 

Jope  V.  Morshead  273 

Jorden  v.   Money   82 

Joseph    J).    Lyons    30 

Joy   V.    Campbell    638 

Joynes  v.  Tatham  325 

Kapitigalla   Eubbee   Estates   v. 

Nat.  Bk.  of  India  224 

Kay  V.  Johnston  214,  278,  522 

Keane  v.  Boycott   100 

«.  Eobarts   250 

Kearley  v.  Thornton  123,  124 

Kearsley  v.  Cole  52 

Keate  v.  Allen  110 

Keble   o.  Thompson   539 

Keech  u.  Hall  419 

V.  Sandford     512 

Kehoe  v.  Lansdowne  (Marq.)  219 

Keily  v.  Monck  116 

Kekewich  v.  Manning  ...  123,  300,  397 

V.  Marker    ....» 374 

Kelly  V.  Bnderton  86 

V.  Morris      382 

V.  Solari   62,  457 

Kelsey,  In  re ;  Woolley  v.  Kelsey    454 
Kemp  V.     Finden   204 

V.  Kemp   106 

V.  Pryor       9 

V.  Weatbrook  427,  428 

Kempsoii  v.  Ashbee  129,  134 

Kendall,  Ex  p.  240,  241,  267,  271, 

272,  527 
V.  Granger      486 

V.  Hamilton  72,  289 

Kennard    v.    Kennard    47 

Kennedy  v.  De  Trafford  192 

Kenney  v.  Wrexham  49,  91 

Kenrick   v.    Mountstephen    278 

Kensington,  Ex  p 421 

Kent  V.  Elstob  615,  616 

«.  Kent     221 

Kerr  v.   Eeed   626 

Kershaw,    In    re ;    Whittaker    u. 

Kershaw     213 

Ketleby  o.  Atwood  405 

Kettlewell  v.  Watson   162 

Key  V.  Bradshaw  112,  113 

Keys  V.  Williams   421 

Kidney  v.  Coussmaker  238,  455 

Kilmer  v.  Brit.  Columbia  Orchard 

Lands,  Ltd 549 

Kimber  v.  Barber  132 

Kimpton  v.  Eve  807,  373 

King  V.   Dennieon      524 


PAGE 

King  V.  Hamlet    142,  143,  145 

0.  King     370 

0.  Malcott    255 

V.  Smith  373,  420,  425 

B.  Wilson      329 

I).  Zimmerman   45 

Kingston  (Lord)  v.  Lorton  (Lord)    447 
Kingston  -  upon  -  Hull     (Corp.)    v. 

Harding      92 

Kinnaird  v.  Webster  185 

Kinnoulc.  Money  422 

Kimberley  v.  Jennings  326 

Kirby  v.   Marlborough    (Duke)   ...  188 

Eavens worth  Hosp.,    Ex    p.  488 

Kirk  V.   Eddowes   459 

Kirkham  v.  Shawcross  214 

V.  Smith      20O 

Kirkman  ».  Booth  136 

Kirkwood   v.    Thompson    418 

Kirwan's  Trusts,  In  re   47 

Kitts   V.   Moore   364 

Knatohbull  v.  Hughes-Hallett   ....  189 

Knebell  v.  White   221 

Knight  V.  Boughton  447 

V.  Bowyer    221 

V.  Bulkeley      434 

V.  Davis   243 

V.  Hunt    154 

V.  Plymouth  (Lord)  532,  533 

V.  Simmonds  311 

Knott,  Ex  p 170,  171,  428,  512 

V.  Morgan    387 

Knox  V.   Symmonds  616 

Lacan  v.  Mertins  241 

Lacey,  Ex  p 128,  135,  136,  512 

V.  Ingle   169,  171 

Lacou,   In   re ;    Lacon    u.     Lacon 

459,  463,  467 

V.  Allen    421 

Lagunas  Nitrate  Co.  v.  Lagunas 

Synd 137 

Lake  v.  Brutton  208 

o.  Craddock  288,  509,  522 

V.  De  Lambert  600 

V.  Gibson     509 

Lamb  c.  Lamb  457 

Lambe  v.  Eames   447,  448 

Lambert  v.  Lambert     593 

V.  Rogers     298 

Lamlee  v.  Haninan     Ill 

Lampet's  Case  356,  431 

Lambeth   Charities,  In  re   492 

Lamplugh  v.  Lamplugh  506 

Lancefield  v.  Iggulden  245 

Lane,  Jn  re;  Belli  D.  Lane   77 

V.  Leadbetter      384 

V.  Newdigate      307,  378 

Lane  Pox,  In  re ;  Gimblett,  ex  p.  149 

Langley  o.  Oxford  (Earl)     472 

Langston  Ex  p 421 


TABLE  OF  CASES. 


PAGE 

Langstaffe  v.  Fenwiok      61 

Langston  v.  Boylston     344,  345 

— —  V.  OUivant 539 

Langton  v.  Horton     420,  440 

V.  Langton      .., 354 

V.  Waite     427 

Lansdowne  (Marq.)  v.  Lansdowne 

(March.)     217,  219 

V.  53 

Lanoy  v.  Athol  (Duke)     568 

Lashley  v.  Hogg     237 

Latouohe  v.  Dusany    165,  166 

Latymer's  Charity,  In  re     495 

Laughter's  Case      546 

Lavery  o.  Pursell     20,  341 

Law  V.  Garrett     617 

V.  Law     355 

Lawless  v.  Mansfield  ...  131,  133,  S12 

Lawley  v.  Hooper      80 

Lawrence  v.   Campbell      631 

u.  Lawrence       453 

V.  Smith    881,  382 

Lawton  v.   Carrfflion     59 

Lea,  In  re;  Lea  v.  Cooke    500 

Leach  v.  Leach     133 

Leader  v.  Pnrday    383 

Leake  v.   Leake      623 

Learoyd  v.   Halifax   Banking   Co.     632 

V.  Whiteley      534 

Leary  v.   Shout      287 

Leathes  v.  Leathes  297,  298,  630 

Lechmere  v.  Brazier     316 

V.  Carlisle  (Earl)     459,  460 

V.  Charlton      526 

V.  Lechmere  (Lady)     ...  459,  460 

Leconturier  v.  Beg 388 

Lee  V.   Alston     218 

V.  Clutton    161,  162,  165 

V.  Jones      92 

V.  Lee     309 

V.  Page    195 

V.  Park     234 

Leech  v.  Trollop     634 

Leeds    (Duke)   v.   Amherst    (Earl) 

192,  223 

V.  Strafford  (Earl)    262 

V.  New  Radnor  (Corp.)  ...  44,  263 

Leeke  c.  Bennett    255 

Lees  V.  Nuttall     133 

Legard  v.  Hodges     520 

Legott  V.  Barrett    324 

Leigh,  Jn  re;  Leigh  ».  Leigh   571 

V.  Burnett      419 

V.  Dickeson     214,  522 

Legg  V.  Goldwire     70,  71 

Leighton   v.   Leighton     361,   362, 

463,  467,  612 

Lemau  v.  "Whitley     505 

Lench  u.  Lench     521 

Le  Neve  v.  Le  Neve    161,  162 

Lennon  v.  Napper     315,  329 


PAGE 

Lenty  v.  Hillas     70 

Leonard  v.  Leonard     56 

Lerouse  «.  Brown     319 

Leslie,  In  re;  Leslie  v.  Prench  ...  622 

V.  Baillie      63,  436 

V.  Thompson     85 

-  ».  Young      384 

Leslie,  Ltd.  v.  Shiell     101 

Lester  v.  Eoxcroft    312,  320 

Lettershedt  v.  Broers     540 

Letton  I).  Gooden     361 

Lever  v.   Goodwin      380 

Levick  v.  Epsom  and  Leatherhead 

Ely 164 

Levy  V.  Walker     388 

Lewis,  Ex  p 624 

,  In  re;  Lewis  v.  Lewis  33, 

46,  136,  660 

».  Pullarton     382,  384 

V.  Hillman    131,  132 

Lightfoot  u.  Heron     96 

Like  V.  Beresford    592 

Liley  v.  Hey  448 

Lilford  (Lord)  v.  Powys-Keck  243,  519 

Lilia  V.  Airey     576 

Lind,  In  re;  Industrials  Finance 

Synd.,  Ltd.  v.  Lind     432 

Lindo  V.  Lindo     65 

Lindsay  v.  Lynch     321,  323,  324 

Lindsay  Petroleum  Co.  o,  Hurd  ...      86 

Lingen  v.  Simpson     285,  303 

Linley  v.  Taylor     450 

Little,  In  re     600 

Liverpool  Household  Stores  Assn. 

t).  Smith    388 

Llanover  v.  Homfray     640 

Lloyd,  In  re;  Lloyd  v.  Lloyd     ...      37 

V.  Attwood     93,  421 

V.  Banks      436,  437 

V.  Branton      117,   119 

V.  Grace  Smith  &  Co 84 

V.  Johnes     201 

«.  Loaring      302 

V.  Mason     588,  501 

V.  Pughe      579 

V.  Bead      507 

V.  Spillet      396 

's  Bank  v.  Pearson     436 

Locke  V.  Lomas     473 

Lockhardt  c.  Hardy    424 

Locking  v.  Parker     417 

Lockwood  V.  Ewer     427 

Lodge  V.  Prichard     289 

Logan  V.  Wienholt  155,  305,  316, 

334,  549 

Lomas  v.  Wright    243 

London  and  Birmingham   Ely   v. 

Winter     327 

London  and  County  Bank  v.  God- 

dard     169,  172 

V.  Lewis  ...  167,  310,  370 


TABLE  OF  CASES. 


PAGE 
liondon   Chartered  Bank   of  Aus- 
tralia V.  Lemprifere     568 

London  and  Midland  Bank  v.  Mit- 
chell           427 

London  (City)  v.  Nash     308 

V.  Perkins      361 

».  Pugh      307 

L.  &  N.  W.  Rly.,  In  re;  Cooper, 

ex  p 47 

L.  &  S.  W.  Rly.  0.  Blackmore  ...  65 
London  Gen.  Omnibus  Co.  v.  Hol- 

loway     92,  155 

Long  V.  Dermis      118 

V.  Eicketts      119 

Longman  v.  Winchester     384 

Loog  (Hermann)  v.  Bean    389 

Loosemore  «.  Knapman    525 

Lopdell   V.    Creagh      225 

Lord  V.  Jeffkins     144,  145 

Lound  V.  Grimwade     121 

Loval   (Lord)  v.  Leeds   (Duchess)    219 

Imw  v.  Bouverie     82 

V.  Burron      405 

Lowe  ».   Peers   112,  113,  119 

Lowndes  v.  Cornford     345 

V.  Lane     85 

Lowson  V.   Copeland      535 

Lowther  v.  Carlton     167 

Lowthian  v.  Hasel     171,  428 

Loxley  v.  Heath     324 

Loyd  V.  Brooking     406 

Lubbock  V.  Tribe     221 

Lucas  V.  Dixon    318 

V.  Lucas      579 

Lucy's  Case    59 

Luddy's  Trustee  v.  Peard     130 

Ludlow  (Corp.)  v.  Greehouse  484,  488 

Lumley  v.  Wagner     307,  392 

Lunn  V.  Thornton      432 

Lupton  V.  White     193,  263 

Lush's  Trusts,  In  re     592 

Lutkins  v.  Leigh     243 

Luttrell  V.  Waltham   (Lord)  105, 

107,  332 
Lyde  v.  Munn     309 

V.  Mynn      422 

Lydney  and  Wigpool  Iron  Ore  Co. 

0.   Bird      137 

Lyell  V.  Kennedy    626,  631 

Lyon  V.   Tweddell      195 

Lysaght  v.  Edwards     335 

V.  Eoyse     573 

Lythgoe  ».  Vernon     452 

Lytton  (Earl)  v.  Dewey     385 

Mabeb  v.  Hobbs     435 

McCarthy  u.   Decaix      55 

McCormick  v.   Garnett      63 

McCreight  v.  Foster    333,  334 

McCulloch,  In  re    563 


PAGE 

McCulloch  V.  Gregory     613 

McDonnell  v.  Heselrige    295 

McFadden  v.  Jenkyns  ...  317,  397,  398 

McGruther  v.  Pitcher    517 

McKewan  v.   Saunderson     154 

McLeod  V.  Drummond    ...  172,  173,  250 

McManus  v.  Cooke     322 

McNeil  V.  Cahill     154 

McQueen  v.  Parquhar  85,  106,  168 

Macartney  v.  Graham    43 

Macaulay  v.  Shackell    638,  639 

Macdonald  v.  Bell    212 

V.  Longbottom      324 

V.  Macdonald 252 

Macdonnell  v.  Harding    533 

Mackay,  In  re ;  Griessermann  o. 
Kerr      534 

V.  Bentley      69 

V.  Douglas     150 

Mackenzie  v.  Coulson   ...   68,  195,  405 

V.  Johnston  183,  184,  191 

V.  Bobinson     424 

Mackintosh  v.  Pogose  * 652 

V.  Townsend      498 

Macklin  v.  Lichardson    385,  386 

Mackreth  v.    Symmons     171,  214, 

514,  515,  516,  518,  519 

Maddeford  v.  Austwick     94 

Maddison  v.  Alderson     319,  321 

Maguire,  In  re    492 

Maitland  v.  Backhouse     129 

V.  Irving       129 

Major  V.   Lansley      584 

Makepeace  v.  Rogers     190 

Makings  ».   Makings      201 

Malcolm  v.  Charlesworth     440 

Maiden  v.  Menil     62 

Malim  v.  Keighley     394,  446 

Mallet  V.  Halfpenny     ...  105,  139,  318 

Man  D.   Ballet      494 

Manaton  v.  Molesworth    364 

Manby   v.   Robinson      345 

Mann,  In  re;  Hardy  v.  Att.-Gen.     496 

Manning's  (Mathew)  Case    356 

Manning  v.   Spooner     245 

Mansel   v.    Mansel      407 

Mansell  v.  Valley  Printing  Co.    ...     385 

Manton  ».  Manton     351 

Mare   v.    Sandford      154 

Marker  v.  Marker     219 

Marples  v.  Bainbridge    118,  119 

Marriage  v.  Skiggs     234 

Marriott  v.  Marriott 228,  253 

Marsden's  Trust,  In  re    105,  106 

Marsh  v.  Lee    169,  170 

Marshall  v.   Colman      285 

V.  Rutton      586 

Martidale  v.  Martin    478 

Martin  v.  Cooper    33 

V.  Nutkin      391 

V.  Tomkinson     124 


TABLE  OF  CASES. 


XXV 


PAGE 
Maskell    and    Goldfinch's    Cont., 

In  re     100 

Mason,  In  re    188 

t).  Armitage     308 

V.  Gardiner     126 

V.  Goodburne     634,  637 

V.  Provident    Clothing     and 

Supply  Co 121 

Masonic  Gen.  Life  Assn.  v.  Sharpe      35 

Massenburgh  v.  Ash   398 

Massey  v.  Banner    183,  184 

0.  Davies     190 

Masson  Templar  &  Co.  v.  De  Pries 

244,  248 

Mathews  v.  Feaver     148,  150 

Matthew  v.  Bowler    519 

Matthews  v.  Cartwright     428 

V.  Jones      890 

V.  Newby     231 

».  Smallwood      555 

Matthewson  v.   Stockdale     384 

Maugham  ».  Ridley    421 

V.  Sharpe     510 

Maundrell  v.  Maundrell     160 

Mawman  v.  Tegg    381,  384 

Maxey  Drainage  Bd.  v.  G.  N.  Ely.     378 

Maxwell  v.  Montacute    325 

May  V.  Piatt  60,  65,  66,  68,  69,  71,  318 

Mayer  v.  Murray     418 

Mayhew  v.  Crickett    138 

Mead   v.  Orrery   (Lord)     163,  178 

Mecca,   The      187 

Meek  v.  Kettlewell     338 

Melhuish  v.  Moore     98 

V.  Milton    79,  176 

Mellish  «.   Richardson      629 

Merchant  v.  Driver    249 

Mercier  v.  Mercier     .". 509 

Meredith    u.    Wynne       329 

Mestaer  ».  Gillespie    35,  78 

Metcalf  V.  Hervey     344 

V.  Pulvertoff      166 

Metcalfe  v.  Hutchinson     444 

Metropolitan     Counties     Soc.     v. 

Brown    66,  71,  294 

Metropolitan  Asylums  Bd.  v.  Hill  877 
Metropolitan  Rly.  v.  Woodhouse  ...     390 

Meux  V.  Bell     487 

V.  Howell     430 

Mexborough    (Earl)   ».   Whitwood 

Urban  Council     631 

Middleton's  (Sir  Thomas)  Case...  482 
o.  Brown     101 

V.  Jackson      860 

V.  Middleton    35,  81,  318 

V.  Pollock;  Knight  and  Ray- 
mond, ex  p 608,  605 

V.  Pollock;    Nugee,    ex     p. 

602,  604,  605,  609 

Midgley  v.   Midgley     288 

Mignan  v.  Parry     70 


PAGE 

Milbourne  ».  Ewart     677 

Miles  c.  Harrison     244 

V.  Langley     163 

V.  New   Zealand  Alford  Es- 
tate Co 59 

Millar  «.  Craig  222,  224,  225 

Miller  v.  Blandist     317 

1).  Harris     562 

u.  Warmington      262 

Mills  V.  Banks     422 

V.  Bowyer's  Co 614,  615 

V.  Campbell,    629 

V.  Eden     ..." 239 

V.  Parmer  477,  483,  490,  493,  496 

V.  Haywood     319,  320 

Millett  V.   Davy      873 

Milner,  ex  p.;  Milner,  In  re     ....  163 

v.  Milner       78 

Milnes  v.  Gery    49,  322 

Mirams,  In  re     422 

Mirehouse  v.  Scaife    ;...  243 

Mitchell  «.  Hayne   344 

Mitford  V.  Mitford     620 

V.  Reynolds      498 

Mogg  V.  Hodges     245 

Moggridge  v.  Thackwell  477,  483, 

488,  490,  491,  494,  496,  499,  500,  501 

Mole   I).    Mansfield      278 

Monck  V.  Monck  (Lord)    463 

Mondey  v.  Mondey     424 

Montacute  v.  Maxwell    139,  326 

Montague  v.  Dudmau     627 

B.  Sandwich    (Earl)      462 

Montefiore  v.  Guedalla     463,  466 

Montesquieu  v.  Sandys   ...  130,  132,  133 

Montreal  (Bank)  v.  Stuart    294 

Moodaley   o.   Morton      638 

Moodie  v.   Bannister     233 

V.  Reid     75,  77 

Moody  V.  "Walters    401,  408 

Moor  D.   Black      265 

Moore,  In  re;  Trafford  v.  Macono- 

chie      120 

V.  Darton    256 

V.  Ellis     677 

V.  Usher     344 

Moran  v.  Race     596 

Moravian  Society,  In  re     641 

Mordue  i).  Palmer     78 

More  V.   Preeman      578 

V.  More      570 

Morecock  v.  Dickens     166 

Morehouse  v.  Newton    223 

Morgan,  Ex  p 521 

,  In  re;  Pilgrem  v.   Pilgrem  249 

V.  Dillon     560 

V.  Larivifere      221,  339 

0.  Marsack      346 

».  Mather     615,  616 

V.  Minett     130 

V.  Morgan      119 


XXVI 


TABLE  OP  CASES. 


"Morice  v.  Durham  (Bp.)  485,  486,  497 

Morrison  v.  Moat    389 

Morley  v.  Loughnan     136 

V.  Morley     532 

V.  Eennoldson     115,  119 

Mornington    (Countess)   ».   Keane 

621,  526 
Morocco   Bound   Synd.    c.    Harris    388 

Morphett  v.  Jones    319,  320,  321 

Morret  j).  Paske     171 

Morrice  v.  Bank  of  England  231, 

232,  233,  234,  236 

Morris  ».  Baron  &  Co 326 

V.  Colman       391 

V.  Kelly    386 

V.  McCullock     122 

,  Ltd.  V.  Saxelby  ...  121,  307,  335 

Morrison  v.  Arnold     640 

Morse  c.  Roach     613 

V.  Eoyal     127,  136 

Mortimer  v.  Capper    49 

J).  Shortall     60,  68,  69,  70 

Morllock  V.  Buller     80,  293 

Moseley  v.  Simpson    106 

«.  Victoria   Co 632 

Moses  V.  Levi     537 

Moss  B.   Barton      307 

V.  Gallimore      419 

Motteaux  v.  London  Assce.  Co.  ...      70 

Mount,  Ex  p 673 

Moxhay  v.  Inderwick     333 

Moxon  V.  Payne     144 

Moyle  V.  Home    317 

Mullens   v.    Miller      84 

MuUineaux  v.  Mullineaux    258 

Mundy  v.  Mundy  264,  265,  276 

Munns  v.  Isle  of  Wight  Ely.     ...     621 

Murray  v.  Bogue     383 

1).  Elibank  (Lord)    585,  588, 

591,  692 

Murrell  v.  Goodyer     612,  614 

Murthwaite  ».  Jenkinson     406 

Mustnpha  b.   Wedlake      256 

Mutlow  V.   Bigg      337 


Naibn  v.  Prowse     515,  518 

Nantes    0.   Carrock      136 

Nash  V.   Derby   (Earl)      666 

V.  Inman      99 

V.  Morley      485 

National  Phonograph  Co.  v.  Edison 

Bell  Nat.  Phon.  Co 301 

National  Provincial  Bank  of  Eng- 
land, Ex  p. ;  Boulter,  In  re  ...  70,  318 

,  In  re  Newton     ...  237 

,  In  re  Eees     209 

National  Provincial  Bank  ti.  Jack- 
eon      73 

V.  Marshall      305,  649 

V.  Glennusk  (Baron)    92 


PAGE 

National   Trustee   Co.    of   Austra- 
lasia V.  Gen.  Finance  Co 534 

Naylor  v.  Winch     55,  59 

Neal's  (Sir  Paul)  Case     679 

Neale,  In  re     562 

V.   Neale      59 

Neate  v.  Marlborough  (Duke)     ...     514 

V.  Pink      361 

Nelson  v.  Bridges    339 

B.  Duncombe     673 

V.  Stocker      87 

Nelthorpe  v.  Holgate    87,  90 

Nesbitt  V.  Tredennick     419 

Nevill  V.  Snelling    140,  141 

Neville    v.     London     "Express" 

Nevpspaper,  Ltd 437 

V.  Matthewman      355 

V.  Wilkinson     ...  35,  82,  83,  111 

Newcastle      (Duke)     v.      Lincoln 

(Countess)    404 

(Duchess)  V.  Pelham   (Lord)    631 

Newdigate  v.  Newdigate    374 

Newen,  In  re;   Newen  v.   Barnes     298 

Newham  v.  May     339 

Newman  v.  Barton     213,  627 

V.  Newman     436,  456 

V.  Pinto     387 

New  Eiver  Co.  v.  Greaves    360 

Newstead  v.   Searles      405 

Newton   v.   Bennett      235 

V.  Marsden      117 

Nichol  ».  Bestwick     152 

Nicholas  v.  Eidley     209 

Nichols  1).   Chalie      614 

V.  Pitman      386 

V.  Eoe     614 

Nicholson  v.    Chapman      522 

c.  Hooper     157,  428 

V.  Eevell      208 

Nickels  v.  Hancock    617 

Nickolson  v.  Knowles    346 

Nightingale  v.    Goulburn      485 

Nives  V.  Nives     519 

Nocton  V.  Ashburton  (Lord)   ...  82,  84 

Noel  V.  Eobinson  213,  229,  517 

V.  Ward      631 

Nordenfeldt  ».  Maxim  Nordenfeldt 

Guns  and  Ammunition  Co 121 

Nokes  V.  Gibbon     549,  553 

t!.  Kilmorey  (Lord)     315 

Norey  v.  Keep     626 

Noriss  V.  Chambers    369 

Norfolk  (Duke)  v.  Myers     360 

Norman  ».  Morrill     243 

Norris,  Ex  p.;  Sadler,  in  re     ....    237 

North  V.   Ansall      104 

North  British  Insce.  Co.  v.  Lloyd      92 
North  London  Ely.  v.  G.  N.  Ely. 

364,  617 
North  West  Transportation  Co.  v. 
Beatty     137 


TABLE  OF  OASES. 


PAGE 

Northen  B.- Carnegie    507 

Northern  Counties  of  England  Fire 

Insoe.  Co.  v.  Whipp     1S9 

Nugent  V.  Vetaera     571 

Nutbrown  v.  Thornton  ...  302,  303,  308 

Oakes  v.   Turquand      294 

Oatway,  In  re;  Hertslet  v.   Oat- 
way    193,  263 

O'Connor  v.  Spaight     180,  182 

Odessa  Tramways  Co.  v.   Mendel    107 

Oelkers   ».   Ellis      35 

Ogilvie  V.   Poljambe      324 

Okill  V.  Whittaker     64,  65,  67 

Oldfield,  In  re ;  Oldfield  v.  Oldfield    447 

Oliphant  v.  Hendrie      498 

Olliver's  Settlement,  In  re  ;  Evered 

V.  Leigh     467 

Oliver  v.  King     151 

Olley  V.  Fisher     ...  20,  69,  70,  71,  312 

Ommaney  v.  Butcher     486,  497 

Onions  v.  Cohen     297 

V.  Tyrer      48 

Opera,  Ltd.,  In  re     52 

Oquendo,   The      204 

Orby  V.  Trigg     .._. 420 

Orme,  In  re     505 

Ormond  (Marq.)  v.  Kynersley  217,  219 
O'Korke  b.  Bolingbroke  ...  140,  141,  142 

Orr  V.   Diaper     626 

Osborn  v.  Morgan  ...  585,  587,  588,  589 
Osborne  ».  Bradley     311 

V.  Eowlatt      57 

V.  Williams     124,  125 

Osbaldiatou  v.  Simpson     125 

Osmond  v.  Fitzroy     109 

Ostell  V.  Le  Page     369 

Ouseley  v.  Anstruther     246 

Owen  V.  Griffith     215 

V.  Homan      92 

Owens  V.  Bean    492 

Oxenden  v.  Compton  ....  660,  561,  572 
Oxenham  v.  Esdaile     513 

Pacaza  Rubber  and  Produce  Co., 

In  re;  Burns'  Appln 86 

Padbury  v.  Clark    457 

Paddon   v.   Richardson      539 

Page  V.  Broom     329,  504 

V.  Midland   Rly 324 

Paget  V.  Marshall    65,  69 

Pain  V.   Coombs      320 

Paine  V.  Miller     48 

Palmer's  Case      188 

Palmer  v.  Hendrie     424 

B.  Johnson     64 

— ^-  V.  Moore      555 

. V.  Neave      Ill 

Pankhurst  8.  Howell     466 


PAGE 

Papillon  B.  Voice     404 

Paradine  b.  Jane    48,  194 

Pardo  B.  Bingham     237 

Parfitt  V.  Lawless     130 

Paris  (1.  Gilham      346 

Paris     Chocolate    Co.     v.     Crystal 

Palace  Co 331 

Parker  b.  Brooke     163 

B.  Gerrard      277 

V.  McKenna      529 

B.  Sowerby      450 

B.  Trigg      278 

Parkhurst  B.  Lowten     631 

B.  Smith      407 

Parkin,  In  re;  Hill  v.  Schwartz  ...  334 

Parkinson  v.  Hanbury      224,  418 

Parmeter  b.  Gibbs     376 

Parrott  b.  Congreve    390 

V.  Palmer      218 

Parry,  In  re;  Scott  b.  Leake    ....  255 

Parsons,  Ex  p 533 

V.  Baker     448 

Partridge  v.  Partridge      546 

B.  Walker      478 

Paschall  v.  Ketterick     255 

Pascoe  V.   Swan     214,  278 

Pasley  v.  Freeman     82,  87 

Patrick,  In  re;  Bills  b.   Tatham  437 

Paterson  b.   Scot     243 

Patman  v.   Harland      163 

Pawlet  B.  Ingres     360 

Paxton  B.  Douglas     233 

Payton  v.  Bladwell     110 

Peace  v.  Harris     299 

Peachy   B.    Somerset    (Duke)   660, 

553,  556 

Peacock  b.   Evans      141 

u.  Monck      583 

Peake,  Ex  p 519 

B.  Highfield    297 

Pearce  b.  Crutchfield     571 

V.  Green      190,  191 

V.  Piper      370 

Pearl  v.  Deacon     137,  208,  209 

Pearse  v.   Green     535 

Pearson  b.  Morgan    84,  157 

Pease  b.  Hewitt     196 

Peckering  B.  Kimpton    258 

Peers  b.  Lambert    64,  85,  314,  330 

V.  Neeham     279 

Pelton  Bros.  v.  Harrison     599 

Pember  B.  Mathers     309 

Pemberton  v.  Barnes     281 

B.  Pemberton     79,  612 

Pembroke  b.  Thorpe    305,  308,  321 

Pendlebury  B.  Walker    204 

Penn  v.  Baltimore  (Lord)  263,  309, 

313,  369,  392,  542 

Pennell  B.  Dysart  (Earl)    298 

Penrhyu  B.  Hughes      201 

Pentland  v.  Stokes     166 


XXVlll 


TABLE  OF  CASES. 


Percival  (Lord)  v.  Phipps  385,  386 

Perkins,  In  re;  Perkins  v.  Bagot    106 

;  Poyser  v.  Beyfus     65 

Perrius  v.  Bellamy     534 

Perry  v.  Attwood     223 

c.  Barker     424 

V.  Meadowcroft      420 

— —  V.  Nat.  Prov.  Bank  of  Eng- 
land          138 

V.  Phillips     232,  233,  234 

V.  Shipway      540 

V.  Truefitt     387 

Perry's  Almshouses,  In  re    501 

Persse  v.  Persse     59,  62 

Petch  ».  Tutin     432 

Peter  v.  NiohoUs     151 

B.  Eussell      158 

Peters  v.  Blake     375 

Petit  V.  Smith     231 

Petre  v.  Espinasse     151 

».  Petre     301,  528 

Philanthropic   Soc.   v.   Kemp   244 

Philip  V.  Pennell     385,  386 

Phillips,  Ex  p 558,  560,  570,  572 

Phillips  V.  Cayley     77 

V.  Foxhall      92 

V.  Homfray     216,  217,  218 

V.  Hudson     360 

V.  Jones      298 

V.  Phillips     37,  159 

t).   Silvester      514 

's  Trusts,  In  re    437 

Phillipson  v.   Gatty     529 

Phipps  V.  Lovegrove      436 

Pickard,  Ex  p 673 

V.  Sears      156,   157 

Pickering  «.   Cape  Town  Ely 617 

V.  Stamford    (Lord)      35 

Pickett  V.  Loggon     105 

Pickstock  V.  Lyster    430 

Pidcock  V.  Bishop  83,  92,  137,  155 

Pierce  v.  Thornley     590 

V.  Webb     297 

Piercey  v.  Fynney     291 

Pierson  v.   Garnett      447 

».  Hutchinson      42 

Pigot  V.   Cubley      428 

Pike  B.  Fitzgibbon     101 

V.  Nicholas      382 

Pilcher  v.  Eawlins     163 

Pink,  In  re ;  Pink  v.  Pink   299,  511 

Pinnell  v.  Hallett     459 

Pitt  V.  Cholmondeley     223 

V.  Jones      281 

Plenty  v.  West      246 

Plumb  V.  Fluitt     157,  158,  162 

Plymouth     (Countess)    v.    Throg- 

morton   194 

Pocoek  J).  Eeddington    529 

Podmore  v.  Gunning     325 

Pollexfen  v.  Moore     515 


PAGE 

Pollock,  In  re ;  Pollock  v.  Worrall 

463,  466 

Poole,  7n  re;  Thompson  c.  Bennett  236 

V.  Adams     521 

1).  Bott      118 

V.  Middleton      308 

V.  Shergold      33,  330 

Pooley  V.  Quilter     136 

V.  Eudd     302 

Poor  V.  Clark     360 

Pope  V.  Curl     385 

V.  Gwinn     236 

Popham  V.   Lancaster      360 

Porcher  v.  Wilson     243 

Portarlington  (Lord)  v.  Soulby  ...  369 

Porter  t>.  Bolton     447 

V.  Lopes     281 

Porter's  Case     478,  479,  506 

Portland  (Duke)  v.  Topham    ...105,  106 

Portmore  (Earl)  v.  Taylor    143 

Portsmouth  (Earl)  v.  Fellows     ...  541 

Post  V.  Marsh     107 

Pothonier  v.  Dawson     428 

Potter  V.  Sanders     333,  334 

Powell  V.  Evans  Jones  &  Co 133 

V.  Powis     360 

V.  Eiley     246,  445 

V.  Smith     '. 52 

Power,  In  re;  Acworth  v.  Storie...  235 
V.  Bailey    333 

V.  Banks    512 

Powis  V.  Blagrave    373 

Powys  V.  Mansfield     459,  463 

Pratt  V.  Brett     218,  307,  373 

Prebble   v.   Boghurst      577 

Prevost  V.  Clarke     447 

Price  V.   Cheesman     287 

V.  Fashredge       171 

V.  Jenkins      173 

V.  North      236 

V.  Price     98,  166 

V.  Varney      215 

V.  Williams     616 

Prichard  v.  Gee     638 

Priddy  v.  Eose     504 

Priestley  v.  Lamb     570 

Priestman  v.  Thomas     176,  611 

Prime  v.   Stebbing     459 

Primrose  v.  Bromley     207 

Pritchard  v.  Ovey     307 

Pritt  5).  Clay     225 

Probert  v.  Clifford     680 

Progers  v.  Langham     154 

Produce   Brokers    Co.    «.    Olympia 

Oil  and  Cake  Co 615 

Professional  Life  Assce.,  In  re  ...  267 

Prosser  v.  Edmonds    431,  434 

Prudential  Asses.  Co.  v.  Knott  ...  388 

Pugh  V.  Heath    30 

Pullen  V.  Eeady     53 

PuUerton  v.   Agnew      545 


TABLE  OF  CASES. 


XXIX 


PAGE 

Pulsford  I).  Bichards    83,  85 

Pulteuey  c.  Warren   215,  216,  217, 

265,  551 

Pultuey  V.  Shelton     372 

Purdue  v.  Jackson     590,  591 

Pusey  I).  Desbouvrie     54 

V.  Pusey     302 

Pybus  V.  Mitford    506 

Pye,  Ex  p 338,  464 

V.  George     400 

Pym  V.  Blackburn     48 

V.  Lockyer      458,  463 

Pyne,  In  re;  Lilley  b.  Att.-Gen.     496 

QuABRiBE  V.  Colston     127 

Quartz  Hill  Cons.    Gold    Mining 

Co.  V.  Beall     389 

Quick  V.  Haines     249 

Quin  and  Axtens,  Ltd.  v.  Salmon  137 

Eaffeety  v.  King     426 

Kailton  v.  Matthews  87,  89,  92 

BamloU  v.  SoojomnuU     121 

Eamsay  v.  Shelwerdine     507 

Eamsbotham  v.   Senior     567 

Bamsden  v.  Dyson     156 

V.  Hylton     56,  56 

Bamuz  v.  Clay     43 

Bandall  v.  Phillips     151 

■ V.  Willis      155 

Baphael  v.  Boehm     636 

Batcliffe  v.  Barnard     421 

Baw  V.  Potts 35 

Eawden  v.   Shadwell     126 

Eawlins  u.  Powell     468 

».  Wickham     84 

Bawson  v.  Samuel  603,  604,  605 

Bay  V.   Bay      249 

Bayner  v.  Koehler     227 

V.  Preston      48 

Bead  v.  Anderson     121 

V.  Brokman     41 

«.  Price      152 

Beade  v.  Lowndes     209 

Beddaway  v.  Banham     387 

Bedding  v.  Wilkes     325 

Eede  v.  Farr     554 

Eedfern  v.  Eedfern    631 

V.  Smith      574 

Bedgrave  v.  Kurd     83,  86 

Eedington  v.  Bedington    201 

Bedman  v.  Bedman     Ill 

Beech  v.  Kennigate    300,  332 

Beed  ».  Norris     133,  512 

Bees  V.  Berrington     138 

V.  De  Bernardy  98,  122,  141, 

437,  438 
Bees  Biver  Silver  Mining  Co.  v. 

Smith     83,  295 

Eeeve  -u.   Parkins  370 

Beeves  v.   Pope  609 


PAGE 

Beg.    V.    Cox   632 

Behden   v.    Wesley    533 

Beid-Newfoundland  Co.  v.  Anglo- 
American  Telegraph  Co 533 

Eeid  V.   Beid  597 

• u.  Shergold     76 

Beiuer  v.   Salisbury  (Marq.)   627 

Benals  v.  Cowlishaw  309,  311 

Eendall   v.    Blair    487 

Benter  v.    Sala   329 

Eevell  V.  Huosey  294,  312 

Bevett  V.  Harvey  ;....  134 

Beynell  v.  Sprye     122,  438 

Bex  V.  Bennett  212 

V.  Bowes      625 

V.  Watson 430 

V.  Whitstable   (Free  Fishers)  215 

Eeyuish  v.  Martin     255 

Beynolds  v.  Pitt   549,  561,  653 

V.  Waring  321,  322,  323 

Bhodes,  In  re;  Bhodes  v.  Ehodes  95 

V.  Bate     131 

Bice   V.   Bice   519 

Bich  V.   Aldred   343 

V.  Cockell   578,  581 

V.  Jackson  71,  324 

Bichards,,     In     re;     Humber     v. 

Bichards     436 

V.  Chambers    585 

V.  Jones  603,  609 

V.  Noble  218,  219 

Eichardson  v.  Bank  of  England  ...  287 

V.  Feary      281 

V.  Horton   72,   73 

V.  Nourse 616 

V.  Young      426 

Bicherson,  In  re  ;  Scales  v.  Heyhoe  338 

Eider  v.  Kidder  124,  507 

Eidgway  «.   Woodhouse   546 

Bidler,  In  re;  Bidler  v.  Bidler  149,  150 

Eidout  I/.  Plymouth  (Earl)  680 

Eigden  v.   Pierce   287 

V.  Vallier     509 

Bipon  (Earl)  v.  Hobart   376 

Bippon  V.  Dawding  576,  577 

Eitchie   v.    Smith    122 

Bivaz    0.    Gerussi    93 

Bivett's   Case   482 

Eoach  v.   Garvan   563 

Boberdeau   v.    Ecus   313 

Eoberts,  In  re ;  Fowler  v.  Boberts  234 

, ;  Knight  v.  Boberts  ...  534 

— —  V.  Barry  Improvement  Com- 
missioners        546 

D.  Gray    99 

V.  Kuffin      222 

V.  Marchaut    336 

V.  Oppenheim     626 

V.  Eoberts  110,  390 

Bobertson  v.  Hartopp  45 

Bobinson,  In  re  434,  594 


XXX 


TABLE  OF  CASES. 


PAGE 

Eobinson  ».  Bland     126 

V.  Byron    (Lord)    378 

V.  Geldard  244 

V.  Jenkins      347 

V.  Lowater  444,  472 

V.  Preston      509 

V.  Eobinson    536 

V.  Tongue    514 

V.  Wall    87 

t).  Wheelwright  ...   457,   546,  599 

V.  Wilson    212 

Eoby,  In  re;  Hewlett  v.  Newing- 

ton  461,  467 

Rochfoucauld  v.  Boustead  132,  133,  612 

Eochfort  V.  Ely  (Earl)  560 

V.  Pitzmaurice  403,  404 

Sogers,  Ex  p 298 

V.  Dallimore  616,  617 

V.  Hadley    69 

V.  Hosegood    311 

V.  Ingham   221,  528 

V.  Eogers     370 

Rolfe  V.   Gregory   528 

EoUand  v.  Hart  161,  162,  165 

Rook  V.  Worth  308 

Eoper  ti.  Holland  254 

Roscarrick   v.    Barton   417 

Eose  V.  Hyman      555 

V.  Poulton     290,  577 

V.  Spicer      555 

c.  Watson   214,  319,574 

EosB  V.  Close  636 

EosBwell's  Case 78 

Roundell    v.    Currer    546 

Rous  V.  Barker  262 

Rouse  V.  Bradford  Banking  Co.  ...  138 

Routh  V.  Webster  387 

.  Rowe  V. 638 

V.  Rowe   468 

V.  Wood      373 

Rowell  v.  Sutchell  311 

Roy  V.  Beaufort  (Duke)   98 

Ruchiner  v.  Polsue  &  Alferi,  Ltd.  377 

Rudd  V.  Lasoelles   314,  315,  331 

Eudge   ti.    Hopkins    360 

Euffin,  Ex  p 527 

Eule   V.   Jewell   555 

Ruscoe  V.   Richards  631 

Rush  V.  Higgs  232,  233 

Rushforth,   Ex  p 212 

RuBsel  V.  Eussel  421 

Eussell,   Ex   p 196 

V.  Dickson      469 

V.  East  Anglian  Ely 353 

V.  Jackson   632 

Eyall  V.  Eolle  413 

!).  Eowles    414 

Rymer,  In  re;  Eymer  v.  Stanfleld  492 

St.  Dunstan  (Pooe)  v.  Beauchamp 

480,  488 


PAGE 

St.  John  V.  St.  John  595 

St.  Luke's  Parish,!!.  St.  Leonard's 

Parish     261 

Sackvill  V.  Aylworth  637 

Sackville     West     v.     Holmesdale 

(Vise.)     -404 

Sadler  v.  Hinxman   213 

V.  Hobbs     539 

V.  Worley    427 

Sale  V.  Moore  447,  448 

Salisbury  (Lord)  v.  Wilkinson  ...  190 

Salkeld  v.  Vernon  85 

Salmon,  In  re ;  Priest  v.  Uppleby 

512,  529 

Salomons  v.  Knight  389 

Salt,  In  re;  Brothwood  v.  Eeeling    243 
Salvin  v.  N.  Brancepeth  Coal  Co.     377 

Sampson  &  Wall,  In  re  571 

Samuel  v.  Newbold  141,  295 

Sanderson's  Trusts,  In  re  573 

Sandon  v.  Hooper  419 

Sanford  v.  Remington  632 

Saunders  v.  Dehew  161,  400 

V.  Leslie      518 

V.  Newbod      295 

Savage  v.  Poster  156,  157,  320 

Savery  u.  King  , 127,  129,  144,  145 

Saville  c.  Tankred  302 

Savoy  c.  Dyer  364 

Saxby  v.   Easterbrook   388 

Saxton  V.  Bartley      281 

Say  V.  Barwick  96 

Sayer  v.  Pierce  216 

Sayers   c.   CoUyer   311 

Scarf  V.  Jardine  72 

Scawin  v.  Scawin  508 

Schlencker  o.  Moxsy  283,  577 

Schneider  v.  Heath  83,  87 

Schofield  V.  Ingham  419 

Scholefield  v.  Templer  145 

Scholfield  V.  Londesborough  (Earl)    157 

Scotland   (Bank)  v.   Christie  185 

Scribblehill  v.  Brett  109,  110 

Scott,  In  re;  Langton  ».  Scott  459,  464 

V.  Alvarez   312,  341 

V.  Avery       49 

V.  Becher 230,  528 

V.  Coulson  63,  64,  91 

c.  Hanson      86 

V.  Liverpool   Corp 286 

V.  Nesbit  126,  295 

■».  Porcher      435 

V.  Rayment     285 

0.  Surman  191,  520 

V.  Tyler  115,  117,  118 

Scurfield  v.   Howes    538 

Seagrave  v.  Knight  375 

V.  Seagrave     593 

Searle  v.  Choat  351,  852,  353 

V.  Cooke     44,  262 

Seaton  v.  Seaton  100,  456 


TABLE  OF  OASES. 


PAGE 
Seddon  v.  N.  Eastern  Salt  Co.  ...      64 

Seeon  v.   Lawson   435 

Seeley   v.   Jago   337 

Belby  v.   Selby  242,  615,  519 

Sellack  v.  Harris   325 

Seruenza  v.  Brinsley     606 

Sergeson   v.    Sealey    202 

SetoD  V.  Slade  45,  315,  329,  335, 

836,  416,  544 

Seymore  v.  Treailian  580 

Seymour  v.  Prickett  188 

Shaftesbury  (Lady)  v.  Arro-wsmith 

627,  630 

Shannon  v.  Bradateed  47 

Shardlow   v.    Cotterill   324 

Sharmau  v.  Bell  615,  616 

u.  Brandt     290 

Sharp,  In  re;  Eickett  v.  Eickett  51,  62 

V.  Carter      352 

V.  Taylor     124 

Sharpe  v.  Foy  101,  105 

Shaw  V.  Bower  473 

V.  Foster  833,  436 

V.  Jersey    (Earl)    298 

V.  Neale      613 

V.  Picton     224 

V.  Thackray    96 

Shedden  v.   Patrick   105 

Sheffield      v.      Buckinghamshire 

(Duchess)   611 

Sheffield  Waterworks  v.  Yeomans  860 
Shelburne  (Earl)  v.  Biddulph  307,  309 
Sheldon  v.   Forteacue  Aland  557, 

560,  573 
Shelf er  v.  City  of  London  Electric 

Lighting   Co 377 

Shelley's  Case  398 

Shelley  v.  Westbrooke  664 

Shelly  V.  Nash  142,  145 

Shepard  v.   Jones  419 

Shephard,  In  re;  Atkins  v.  Shep- 

hard    861 

Shepherd  v.   Harris   539 

B.  Tilley  171,  428 

V.  Wright    204 

Sheppard,  In  re;  De  Brimont  v. 

Harvey      533 

V.  Elliot      419 

Sheridan  v.  Joyce  528 

Sheriff  i'.  Butler  227 

Sherman  v.    Sherman   628 

Sherry,  In  re;  London  &  County 

Bk.  V.  Terry  185,  187 

Sherwood  v.  Sanderson  ...  557,  560,  672 

Shewen  v.  Vanderhoat     233 

Shields,  In  re;   Corbould-Ellis  v. 

Dales  459,  466 

Ship   V.    Crosskill   82 

Shirley   v.   Ferrers    (Earl)    638 

Shore  v.  Wilson  489,  501 

Shortridge  v.  Lamplugh  506 


PAGR 

Shrewsbury  (Countess)  v.  Shrews- 
bury (Earl)  200 

Shrewsbury  v.  Blount  86 

Shrewsbury    &   Birmingham    Ely. 

V.  L.  &  N.  W.  Ely 313 

Shrewsbury    &    Chester    Ely.    v. 
Shrewsbury  &  Birmingham  Ely.     390 

Shuldham  v.   Smith  630 

Shulter's  Case  33 

Sibbard  v.  Hill  93 

Sibbering  o.  Balcarres  (Earl)  144 

Sichel  V.  Mosenthal     285 

Sidebotham  v.  Barrington  -330 

Sidney  v.   Sidney   592 

Silk  V.  Prime  236,  236 

Sillitoe,   Ex   p 291 

Simmonds,  Ex  p 52 

Simmons  v.  Cornelius  317 

Simpson  v.   Howden   (Liord)   121, 

154,  293,  294,  297 
Simson   v.    Cooke    185 

V.  Ingham  185,  188 

Skip  V.  Harwood  290,  352 

Skipworth  v.  Skip  worth 192,  223 

Skyring  v.  Greenwood  224 

Skyrme,  Ex  p 240,  241 

Slade  V.  Tucker  632 

Slamming  v.  Style  357,  579 

Slater's  Trusts,  In  re  142 

Sleech's  Case  72,  188,  289 

Sleight  V.  Lawson  539 

Slevin,  In  re;  Slevin  v.  Hepburn    497 

Slingsby  v.  Boulton  847 

Sloman  v.  Walter  45,  549 

Small    V.    Marwood    430 

Smallman    o.    Onions   374 

Smart  v.  Smart  562,  664,  665 

V.  Tranter  597,  600 

Smith,  In  re;  Oswell  v.  Shepherd      73 

B.  Capron    163 

V.  Chadwick    85 

V.  Chichester      630 

V.  Clarke     121 

V.  Claxton      338 

V.  Clay  35,  225 

c.  Colbourne      312 

V.  Cowan     351 

V.  Cowell     353 

V.  Everett    540 

V.  Fremont      310 

V.  Garland  151,  171 

V.  Harrison   87,   90 

V.  Hibbard      885 

V.  Jones       165 

V.  Kay      128 

V.  Leveanx      190 

0.  Moffatt    543 

V.  Nethersole      623 

V.  Packhurst      74 

v.  Pincombe   55,  59 

V.  Scotland  (Bank)  ...  83,  86,  155 


XXXll 


TABLE  OF  CASES. 


PAGE 
Smith  V.   Smith     571 

V.  Stowell 493 

V.  Warde     :. 299 

V.  Wheatcroft     327 

Smith's  Will,  In  re  356 

Smith  &  Nelson,  In  re   616 

Smyth,  Ex  p 193,  194,  195 

Snelling  v.  Thomas  327 

Sneyd  v.  Sneyd  76 

Snowdon,  Ex  p.,  In  re  Snowdon    207 

Soar  V.  Ashwell  526 

Soci^t^  Anon,  des  Manuf.  de  Glaces 

V.  Tilghman's  Patent  Sand  Blast 

Co 389 

Soci^t^  Anon.  Panhard  et  Levassor 

V.  Panhard  Levassor  Motor  Co.  388 
Solicitors    &    General    Assce.    v. 

Lamb      271 

Soltau  V.  De  Held 377,  378 

Somers  Cocks ,  In  re;  Wegg  Prosser 

I).    Wegg  Prosser   496 

Somerset  (Duke)  v.  Cookson  802 

Somerset,    In    re;     Somerset    v. 

Poullett    (Earl)    399 

South,  Ex  p 435,  436,  440 

u.  Bloxam      268 

Southampton  Dock  Co.  v.  Southamp- 
ton Board  19 

Southcomb   v.   Exeter   (Bp.)   329 

Southcote's  Case  574 

Southey  ».  Sherwood  381 

South  Wales  Ely.   v.  Wythes   ...     331 
Southwark  Water  Co.  v.  Quick  ...     633 

Sowden  v.  Sowden     459 

Spalding  v.  Gamage  388 

Sparks  v.  Liverpool  Water  Works    555 
Speer  v.  Crawter  ...  258,  259,  260,  262 

Speight  V.   Gaunt  532 

Spike  v.  Walrond   273 

Spence,  In  re  562,  563 

Spencer   (Earl)  v.   Peek   636 

Spencer  v.   Pearson   169 

Spicer  v.  Martin     309,  311 

Spike  V.  Harding  262 

Spiller   V.    Spiller    310 

Spooner  v.  Pain  434 

Sprange  v.  Lee  284 

Spread  v.  Morgan 456,  457 

Sproule  V.  Prior  242,  519 

Sprye  v.  Porter  437 

Squire  c.  Dean  586 

Staokpole  v.  Beaumont  ...  114,  115,  592 

Stainton  v.  Carron  Co 221,  235 

Stanford  v.  Eoberts  298 

Staniland  v.  Willott  256 

Stannard   v.    St.    Giles    (Vestry), 

Camberwell      379 

Stanley  v.  Stanley     101 

Stansfield   v.   Habergham    ...   373,  407 

Stapilton  v.  Stapilton  55,  69,  74 

Stapleford  Coll.  Co 630 


PAGE 

Stapleton  v.  Stapleton  398 

Stead  V.  Clay  370,  390 

Steadman  v.   Hockley   214 

Steel  V.   Dixon 208 

Steff  V.   Andrews    616 

Stephens,  Ex  p 601,  603,  605 

V.  Green       437 

V.  James      568 

Stevens,  In  re ;  Cooke  v.  Stevens    536 
V.  Bagwell     123,  438 

V.  Savage    571 

V.  Stevens   454,  455 

V.  Trevor-Garrick      600 

Stewart  v.  Hall  523 

V.  Stewart  53,  56,  62 

Stickney  v.  Keeble  315,  329 

Stikeman   v.    Dawson    101 

Stileman   u.  Ashdown   425 

Stillwell  V.  Wilkinson  102 

Stilwell  V.   Wilkins   353 

Stirling    v.    Burdett    207 

V.  Forrester    138,    202 

Stock  V.   McAvoy   508 

Stockley  v.  Parsons  597 

V.  Stockley  58,  59 

Stocks   V.   Dobson   436 

V.  Wilson  99,  101 

Stoell  V.  Boleter  624,  625 

Stogdon  V.  Lee  582,  599 

Stone  V.  Comptou  92 

V.  Lidderdale      434 

V.  Littledale    121 

Stones  V.   Cook   594 

Storer  t,.  G.  W.  Ely 309 

Storey  v.  Johnson  278 

Stowell  (Lady)  v.  Cole  221 

Strange  t.  Harris   230 

Strangways  v.  Eead  133 

Strathmore    (Countess)    v.    Bowes    112 
Stranbenzee  (Van),  In  re  ;  Boustead 

V.  Cooper  196 

Streatfield  v.   Streatfield   451 

Street  v.  Eigby  614 

V.  Street       622 

Stribley  v.   Hawkie   313 

Strong   V.    Bird    299 

Stuart ,  In  re;  Smith  v .  Stuart  ...  534 

Stuart  «.  Bute   (Marq.)   559,  662,  567 

V.  Kirkwall   (Lord)   586 

Stubbs  ».   Sargon  505 

V.  Slater  133,  427 

Stucley,  In  re;   Stucley  v.  Keke- 

wich    517 

Sturge  V.  Sturge  58,  60 

Sturgis  V.  Champneys  ...  589,  590,  591 

Sturt  V.  Mellish  394 

Styles  V.   Gury   535 

Sudlow  D.  Dutch  Ehenish  Ely.  ...     555 

Suffolk   (Earl)  v.  Green  636 

Suisse  V.  Lowther  (Lord)  466,  469 

Sumner  o.  Powell  72,  73 


TABLE  OF  CASES. 


PAGE 

Snmpter  v.  Hedges   156 

Sutherland   v.   Brigga    320 

Suttou  V.  Chetwynd  (Viae.)     398 

Swaine  D.  G.  N.  Ely 377 

Swan  V.   Swan  278,  280,  522 

Swanwick   v.   Lifford   422 

Sweet   V.    Southoote   168 

Swift   V.    Swift    564 

Sympson  v.  Hornsby 47 

Tailby  o.  Official  Eeceiver  482 

Talbot  (Earl)  v.  Scott  375,  379 

Talbot  V.  Frere  171,  235 

-^ V.  Badnor  (Earl)  7.....     455 

Talbott  V.  Shrewsbury  (Duke)  467, 

468,  563 
Tallerman    v.    Dowring    Eadiant 

Heat  Co 389 

Talmarsh   v.   MugleSton   35 

Tamplin  v.  James  20,  30,  312,  326,  341 
Tanqueray   Willaume   &   Landau, 

In  re  249 

Tapling  v.  Jones  418,  423 

Tate  V.  Hilbert  256,  338 

Tatham   v.   Wright    612 

Taunton  v.  Morris  589,  594 

Taylor  v.  Beech  325 

V.  Coenan    150 

V.  Fields      527 

V.  Haylin  221,  222 

V.  London  &  County  Bk.  169, 

172,  436 

V.  Meads  583,  584 

V.  Plumer    528 

V.  Popham  417,  450 

V.  Portington      324 

V.  Eussell  159,  161,  418 

V.  Stibbert      335 

V.  Taylor  467,  609 

Taylor  Sons  &  Co.,  Ex  p 151 

Teale   v.   Teale   278 

Teesdale   v.    Teesdale    156 

Tenham  (Lord)  u.  Herbert  360,  361,  362 

Thackwell  v.  Gardiner  77 

Thellusson  v.  Woodford  450,  456 

Thetford   School   Case   478 

Thomas,  In  re ;  Sutton  Garden  & 

Co.   5).   Thomas    226 

Thomas  v.  Canterbury  (Archb.)  ...  229 

V.  Brigstocke      355 

V.  Edwards     388 

V.  Jones      378 

V.  Lloyd      131 

V.  Oakley     379 

V.  Porter      556 

V.  Thomas      171 

Thompson  ».   Fisher      446 

V.  Harcourt     302 

V.  Hodgson     256 

v.  Hudson      188 

V.  Leake  34,  78,  556 


PAGE 

Thompson  v.  Smith   78,  622,  623 

V.  Stanhope     386 

Thomson  v.  Thomson   122 

Thorley's     Cattle     Food     Co.     c. 

Massam      388 

Thorn  v.  Bigland  82 

Thornborough  v.  Baker  256,  416 

Thornborrow  v.  Whiteacre  ...  545,  546 

Thorndike  v.   Hunt   227 

Thorne  v.   Heard    533 

V.  Kerr     249 

Thorneycroft  v.  Crockett  170 

Thornton  v.  Knight  297 

V.  StokiU     529 

Thoroughgood's   Case    33 

Thursby,  In  re ;  Grant  ».  Littledale  84 

Thwaites  v.   Foreman   237 

Thynne  (Lady)  v.  Glengall  (Earl) 

459,  460,  462,  465 

Thynne  v.   Shove   388 

Tichner,  In  re  437 

Tickel  V.   Short   224 

Tidd   V.   Lister    590 

Tilley  v.   Bridges   216 

Tillott,  In  re;  Lee  v.  Wilson  ...  535 

Timson  v.  Eamsbottom  161,  437 

Tindall  v.  Powell  190 

Tinsley  v.   Lacey   382 

Tipping  V.  Tipping  242,  580 

Tissen  v.  Tissen  366 

Tittenson  v.  Peat  633 

Todd   V.   Gee   340 

Toilet  V.  Toilet  33,  46,  47,  75,  76 

Tolson  V.   Collins   468 

V.  Sheard     335 

Tombs  V.  Eock  246 

Tomlinson  v.  Harrison  622 

Tomson  v.   Judge   129 

Tommins   v.-  Prout    370 

Topham  v.  Portland  (Duke)  ...  105,  106 

Toplis  V.  Hurrell   539 

Torrance   v.    Bolton    90 

Towell  V.  Band     157 

Tower  v.  Eous  (Lord)  246,  525 

Towers  ».  Davys     301 

Townley  v.  Sherburne  537 

Townsend     (Marq.)    v.     Stangrom 

53,  69,  105,  324,  327 

Townsend  v.  Ash  217 

V.  Lowfield     82 

V.  Westacott      150 

Townshend    (Lord)   v.    Windham 

149,  244,  578,  580  • 

Trafford   v.    Boehm    534 

Travis  v.  Milne  173 

Treasury  Solicitor  v.  Lewis   256 

Trego  V.   Hunt   388 

Tregonwell  v.  Sydenham  507 

Trenohard  v.  Wanley   82 

Trevor  o.   Trevor   404 

Trimmer   v.    Bayne    209 


XXXIV 


TABLE  OF  CASES. 


PAGE 

Trinidad  Asphalte  Co.   v.   Coryat    160 

Troughton   c.    Binkes    423 

Trowell  v.  Shenton    174 

Trower  v.  Newcombe  83,  86 

Trutch  V.  Lamprell  539 

Tubbs,  In  re;  Dykes  o.  Tubb  ...     444 
Tucker  «.  Bennett  68,  300 

V.  Laing      138 

I).  Lingern      218 

V.  Phipps     105 

V.  Wilson    427 

Tuff, /n  re;  Nottingham,  eai  p.    ...     597 

Tuffnell  V.  Page     493 

Tulk  V.  Moxhay     311 

TuUett  V.  Armstrong     582,  599 

Tullock  V.  Hartley     263 

Turner's  Case    589,  690 

Turner   v.    Collins       129 

u.  Green     67 

V.  Harvey    82,  87,  88,  293 

0.  Merryweather      638 

V.  Newport      196 

V.  Tomer      65 

I).  Wright     219,  373 

Turquand  v.  Dawson     638 

u.  Wilson      192 

Turton  v.  Benson     110 

u.  Turton     387 

Tussaud,     In     re;      Tussaud     v. 

Tussaud    462 

Tuther  v.  Caralampi     20 

Twiss  V.  Maasey     289 

Twyne's  Case     148,  149,  161 

Tyler  v.  Yates     142 

Tyndale  v.  Warre      514 

Tynt  J).  Tynt    580 

Tyrrell  v.  Bank  of  London  ...  133,  192 

Tyson  v.  Fairclough     354 

V.  Smith     682 

Udell  v.  Atherton     84 

Underbill   v.   Van   Cortlaindt      ...     619 

Underwood  v.  Courtown    165,  166 

Upwell  V.  Halsey  356 

Uvedale  v.  Bttrick     541 

Vachel  v.  Vachel    356 

Vallanoe,  In  re ;  Vallance  v.  Blag- 
don     123 

Vandenberg  v.  Palmer     397 

Vandergucht  v.  De  Blaquiere  622 

Vanderzee  v.   Willis      428 

Vane  (Earl)  v.  Eigden     444 

Vane  v.  Dungannon  (Lord)     106 

Van    Gelder    Apsimon    &    Go.    o. 
Sowerby  Bridge  Flour  Soc.    418,  419 

Vansittart   v.   Vansittart      564 

Vardon's  Trusts,  In  re     461,  457 

Vaughan,  Ex  p 563 

Venning  v.  Leckie     284 

Venture,  The  505,  507 


PAGE 

Vernon's  Case     127 

Vernon  v.   Keys      67 

V.  Vawdry      540 

V.  Vernon      309 

Vezey  v.  Jamson     486 

Vigers  v.  Pike     326 

Viola     V.     Anglo-American     Cold 

Storage  Co 363 

Voll  T.   Smith      317 

Vulliamey  v.  Noble  603,  605 

Vyvian  v.  Vyvian    347 

W.  V.  B 125 

Wace  V.  Bickerton     71 

V.  Mallard      447 

Wade  V.  Coope    209 

I/.  Paget     76 

Wadman  v.   Caloroft     553 

Wagstaff,     In    re ;     Wagstaff     v. 

Jalland      78 

Wain  V.  Bailey    43 

Wake  V.  Conyers    ...  258,  260,  262,  264 

Walcot  I).  Walker     381 

Waley  Bridge  Co.  v.  Green  137 

Walker,  In  re    95,  588,  .592 

,  In   re;    Sheffield   Bkg.    Co. 

V.  Clayton     209 

;  Walker  v.    Buncombe  668 

• V.  Armstrong      70 

V.  Jackson      246 

V.  Limon      159 

V.  Meager     '.  238 

V.  Perkins      123 

V.  Symonds     636,  638 

V.  Taylor      172,  260 

u.  Walker    326 

i>.  Ware  Hadham  &  Bunting- 
ford   Ely 621 

V.  Wetherell      569 

Wall  V.  Stubbs    86 

Wallace  v.  Auldjo     588,  691 

Wallis  V.  Bastard    602,  603 

V.  Portland    (Duke)      123 

V.  Pipon     229 

V.  Smith    549,  661 

Wallwy  V.  Coutts    435,  504 

Walmsley  v.  Child     42 

V.  Walmsley    192,  223,  636 

Walsh  V.  Gladstone    495,  500 

V.  Stoddart      232 

Walter  v.  Ashton     387 

V.  Hodge      579 

Walters  v.  Walters    235 

Waltham's  (Lord)  Case    81 

Walworth  «.  Holt     286 

Ward  V.  Bevill    406 

V.  Buckinghamshire     (Duke) 

.      303,  306 

0.  Duncombe     436,  437 

V.  Hobbs      91 


TABLE  OF  CASES. 


PAGE 

Ward  v.  National  Bank  of  New 

Zealand      208 

v.  Thomas      249 

■».  Turner      256 

Warden  n.  Jones     152 

Ware  d.  Bgmont  (Lord)     165 

V.  Horwood     360 

V.  Polhill    405,  570 

Waring  v.  Coventry     201 

V.  Hotham     261,  263 

Warington  ».  Wheatstone    345 

Warner  v.  Baynes     278,  279 

V.  Jacob      418 

Warren  v.  Eudall     455 

Warrick  v.  Warrick     167 

Warwick  ».  Warwick    73 

Wasdale,  In  re;  Brittin  v.  Part- 
ridge      437 

Wason  J).  Wareing     65 

Wasserberg,  In  re;  Union  Bank  of 

London  v.  Wasserberg     256 

Waterhouse  ».   Stansfield     251 

Waters  v.  Mynn     420 

V.  Taylor     290 

V.  Waters     619' 

Wakins,  Ex  p 3*13 

Watkins  v.   Cheek      472 

V.  Williams      279 

Watkyns  v.   Watkyns      594 

Watney  v.  Trist     285,  286 

V.  Wells     287 

Watson  V.  Gass     278 

V.  Marston      71 

V.  Mid  Wales  Ely     605 

u.  Northumberland      (Duke)  275 

Watts  V.   Girdlestone   529 

Way's  Trusts,  In  re     436 

Weale  v.   OUive      838 

Weall,  In  re;  Andrews  v.  Weall  532 

V.  Eice     458 

Wearmouth  Crown  Glass  Co. ,  In  re  197 

Webb,  In  re    573 

;  Lambert  ».  Still    222 

V.  England      194 

— -  V.  Grace      118 

V.  Hewitt     138 

V.  Jones       525 

V.  Shaftesbury   (Earl)      456 

V. (Lord)     570 

Webber  v.  Webber     255 

Webster  v.   Bosanquet      552 

V.  Cecil      315 

Wedderburn  v.  Wedderburn     134,  529 

Wedgwood   v.   Adams      316 

Weekes'   Settlement,  In  re     46 

Weekes  v.  Slake     ..• 360 

Wekett  V.  Eaby     300 

Welby  V.  Eutland   (Duke)     361 

D.  Welby     454,  456 

Welch,  In  re     569 

Wellbeloved   v.   Jones      500 


PAGE 

Weller  v.  Smeaton     361,  362 

Wellesley's   Case      567 

Wellesley  v.  Beaufort  (Duke)  560,  562 

V.  Wellesley     557,  560,  562,  564 

Wells  V.   Poster      434 

V.  Eow     246,  525 

Welsbaoh  Incandescent  Gaslight 
Co.  •».  New  Sunlight  Incandes- 
cent Co 683 

Wenham,  In  re ;  Hunt  ».  Wen- 
ham      233 

Wentworth  v.  Lloyd     631 

Wesley  v.   Walker     340 

West,  In  re;  George  v.  Grose    ...     524 

West  V.  Erissey     405 

V.  Knight      480- 

V.  Eeid     158,  421 

u.  Sackville    (Lord)      686 

V.  Shuttleworth      489 

V.  Skip     289,  290 

V.  Williams     171,  172 

Westmeath    (Marq.)   v.    Salisbury 

(Marq.)     120 

Westmeath  v.  Westmeath    595 

Wethered  «.   Wethered     110,  144,  422 

Whale  V.   Booth     250 

Whaley  v.   Bagenal      321 

V.  Dawson      277 

Wheeler  v.  D'Esterre    329 

V.  Home     179,  180 

V.  Le  Marchant     631,  632 

Whelan  v.  Palmer     106 

Wheldale  v.  Partridge     337,  512 

Whieldon  v.    Spode      246 

Whincup  ».  Hughes  195 

Whistler  v.  Webster    456,  457 

Whitaker  v.  Bush     603,  607,  609 

V.  Wright      284 

Whitbread  v.  Brockhurst     319 

Whitbread   &   Co.   v.   Watt     319, 

335,   514 

Whitchurch  v.  Bevis     325 

White,  Ex  p 497 

,  In  re;  White  v.  White  ....     451 

V.  Cordwell      609 

V.  Damon      140 

V.  Hall     543 

V.  Lincoln    (Lady)      192 

V.  Nutt      49 

V.  Parsither      423 

V.  Peterborough    (Bp.)     351,    354 

t).  Warner      553 

0.  White     201,  477 

V.  Williams      182 

White's  Trusts,  In  re     497 

Whitehorne  Bros.  v.  Davison 82 

Whitehouse  v.  Partridge     622 

&  Co.,  In  re     602 

Whiteley    and  Eoberts,  In  re    ...    615 

Whitfield,  Ex  p 558 

V.  Bewitt     217,  218 


TABLE  OF  CASES. 


PAGE 

Whitfield  0.  Clemment    454 

V.  Pausset      40,  41,  42 

Whiting's     Settlement,     In     re; 

Whiting  V.  De  Eietzen     118 

Whiting  v.  Burke     204 

Whitmore  v.  Oxborrow     232 

Whittingham  v.  Murdy    100 

Whitwell  V.  Arthur     287 

Whitwood  Chemical  Co.  v.  Hard- 
man      392 

Whorewood  v.  Whorewood     593 

Widmore  v.  Woodruffe     479 

Wier  K.   Tucker      224 

Wigsell  V.  Wigaell     200 

Wigram  ».   Buckley      166 

Wilde  V.  Porte     319,  320 

Wilder  v.  Piggott   457 

Wilkes  ».  Groom    532 

V.  Spooner     168 

— —  V.  Steward       534 

V.  Wilkes      595 

Wilkins  v.  Aiken    380,  382,  384 

Wilkinson  v.  Dent     455 

V.  Henderson      289 

v.  Jonghim    78 

Willan  o.  Willan     55,  294 

Wiloock  ».  Terrell     434 

Willesford  v.  Watson    617 

Williams,  Ex  p 527 

V.  Bayley  124,  125,  295,  297,  298 

V.  Cooke      221 

V.  Everett       435 

B.  Plight      42 

B.  Games      281 

V.  Kershaw     486 

V.  Lambe     266 

V.  Neville      317 

V.  Nixon      538 

V.  Owen     420 

V.  Preston       105 

V.  Prince     of     Wales     Life 

•     Insce.   Co 386 

V.  Protheroe      439 

V.  Quelrada  Ely.   Land  and 

Copper  Co 632 

V.  Eawlinson      188 

».  Scott     135 

V.  Thomas      266 

-  V.  Williams      42,  278 

Williamson  v.  Barbour     222 

V.  Gihon      109,  110 

V.  Hine      133 

Willis  V.  Jernegan     223,  224 

Willmott  V.  Barber     156 

Willoughby  v.  Willoughby    ...411,  633 

Wills  V.  Slade     279,  280 

•  V.  Stradling      321 

Wilson,  Ex  p 138,  419 

V.  Church     633 

V.  Pielding      242 

V.  Hiscox      401 


PAGE 

Wilson  V.  Johnstone    46,  195 

».  Townshend   (Lord)   ...456,  457 

V.  Northampton     and     Ban- 
bury Ely     309 

V.  O'Leary      469 

V.  Eay      154 

V.  Thornbury      457 

V.  Turner       568 

V.  W.  Hartlepool  Ely.  ...319,  320 

V.  Williams      314 

v_  Wilson    74,  595 

Winch  V.  Winchester      71 

Winchester  (Bp.)  v.  Knight     217,  218 

D.  Paine      166 

Wind  V.  Jekyll     230,  254 

Windhill  Local  Bd.   u.  Vint  121 

Wing   V.   Harvey      556 

Winged  v.  Lefebury     335 

Winter  v.  Anson   (Lord)     519 

Wiseman  v.  Westland      166 

Withy  V.  Cottle  807,  340 

Wolmerhausen  ».  GuUick     207 

Wolterbeek  v.  Barrow     70 

Wolverhampton    (Corp.)    v.    Em- 
mons       305,  309 

Wood,  In  re;  Att.-Gen.  v.  Ander- 
son        505 

;  Ward  v.  Wood     454 

V.  Barker     154 

V.  Boosey      383 

V.  Conway    (Corp.)      377 

V.  Dixie      150 

V.  Downes      129 

V.  Griffith     439,  616,  617 

V.  Midgley     139,  318,  325 

V.  Eowcliffe      302 

V.  Eowe      354 

V.  Wood      581 

Woodgate  v.  Pield     232 

Woodhouse  v.   Shepley     113 

Woodward,  Ex  p 565 

u.  Goulstone     48 

V.  Woodward      576 

Woolaston  v.  King     455 

Wooldridge  ».  Norris  ...  138,  209,  309 
Woollam  V.   Hearn     68,  70,    71, 

324,  326 
WooUey  v.   Clarke      249 

V.  Colman       425 

Woolridge  v.  Woolridge     451,  457 

Worrall  v.  Jacob     52,  595 

V.  Martar      520 

Worsley  v.  Scarborough  (Earl)  167 
Worthing  (Corp.)  v.  Heather  ...  501 
Worthington    c.    Abbott    270 

V.  Evans      119 

V.  Morgan     518,  519 

Wortley  v.  Birkhead     170,  171 

Wotherspoon  v.  Currie     387 

Wray  v.   Steele      509 

V.  Wray     288,  510 


TABLE  OF  CASES. 


XXXVll 


PAGE 

Wren  v.  Bradley     120 

Wright  V.  Atkyna      448 

V.  Bell      307 

V.  Black      232 

V.  Cadogan     577,  583 

V.  Carter     128,  129 

«.  Cartwright      356 

V.  GofE     52,  66,  69 

V.  Maidstone  (Lord)     43,  44 

V.  Morley  210,  212,  593,  594 

V.  Nutt      270 

V.  Redgrave      368 

V.  Simpson     138,  270 

V.  Snowe      88 

V.  Ward     345 

V.  Wright    422 

Wrightson  v.  Hudson    165,  166 

Wrixdon  c.   Vige      201 

Wyatt  V.  Barnard     382 

B.  BarWell      162,   165 

Wyllie  V.  Pollen     171 


PAQE 

Wynn    o.   Morgan      330 

V.  Newborough     (Lord)     ....     353 

Wynne,  In  re     573 

XiMENBS  V.  Prance     370 

Yates  v.  Cousins    195 

V.  Hambley      215 

Yeatman  v.  Yeatman    173 

York   (Mayor)   v.   Pilkington   261, 

360,  361 

Youatt  V.  Winyard     389 

Young  V.  Bank  of  Bengal    603 

V.  Keighley      527 

0.  Peachey      325 

V.  Walter     614,  616 

Younge,  Ex  p 324 

Youngs,  In  re;  Doggett  c.  Eevett    539 

ZoucH  «.  Parsons      100 


E.J. 


COMMENTARIES 

ON 

EQUITY    JURISPHUDENCE. 

CHAPTER    I. 

THE   TEDE   NATURE   AND    CHABACTEE  OP  EQUITY   JURISPRUDENCE. 

§  1.  In  treating  of  the  subject  of  equity,  it  is  material  to  distinguish 
the  various  senses  in  which  that  word  is  used.  For  it  cannot  be  dis- 
guised, that  an  imperfect  notion  of  what,  in  England,  constitutes 
equity  jurisprudence,  is  not  only  common  among  those  who  are  not 
bred  to  the  profession,  but  that  it  has  often  led  to  mistakes  and  con- 
fusion in  professional  treatises  on  the  subject.  In  the  most  general 
sense,  we  are  aecustorried  to  call  that  equity,  which,  in  human  trans- 
actions, is  founded  in  natural  justice,  in  honesty  and  right,  and  which 
properly  arises  ex  sequo  et  bono.  In  this  sense  it  answers  precisely  to 
the  definition  of  justice,  or  natural  law,  as  given  by  Justinian  in  the 
Pandects.  "  .Justitia  est  constans  et  perpetua  voluntas  jus  suum 
cuique  tribuendi.  Jus  pluribus  modis  dicitur.  Uno  modo,  cum  id  quod 
semper  aequum  et  bonum,  jus  dicitur;  ut  est  jus  naturale.  Juris 
prsecepta  sunt  hsec;  honeste  vivere,  alterum  non  laedere,  suum  cuique 
tribuere"  (a).  And  the  word  jus  is  used  in  the  same  sense  in  the 
Roman  law,  when  it  is  declared,  that  jus  est  ars  boni  et  sequi  (b), 
where  it  means,  what  we  are  accustomed  to  call,  jurisprudence  (c). 

§  2.  Now,  it  would  be  a  great  mistake  to  suppose  that  equity,  as 
administered  in  England,  embraced  a  jurisdiction  so  wide  and  exten- 

(a)  Dig.  Lib.  1,  tit.  1,  ff   10,  11. 

(6)  Dig.  Lib.  1,  tit.  1,  f.  1. 

(c)  Grotiua,  after  referring  to  the  Greek  word,  used  to  signify  equity,  says, 
"  Latinis  autem  sequi  prudentia  vertitur,  quae  se  ita  ad  aequitatem  habet,  ut  juris- 
prudentia  ad  justitiam."  Grotius  de  jEquitate,  ch.  1,  §  4.  This  distinction  is  more 
refined  than  solid,  as  the  citation  in  the  text  shows.  See  also  Taylor's  Elements  of 
the  Civil  Law,  pp.  90  to  98.  Cicero,  Topic.  §  2;  II.  ad  Heren.  13;  III.  ad  Keren.  2. 
Bracton  has  referred  to  the  various  senses  in  which  jus  is  used.  Item  (says  he)  jus 
quandoque  ponitur  pro  jure  naturali,  quod  semper  bonum  et  squum  est;  quandoque 
pro   jure  civili   tantum ;   quandoque   pro  jure   praetorio   tantum ;    quandoque   pro   eo 

E.J.  •  1 


2  EQUITY    JURISPRUDEXCE.  [CH.    I. 

sive,  as  that  which  arises  from  the  principles  of  natural  justice  above 
stated.  Probably  the  jurisprudence  of  no  civilized  nation  ever  at- 
tempted so  wide  a  range  of  duties  for  any  of  its  judicial  tribunals. 
Even  the  Eoman  law,  which  has  been  justly  thought  to  deal  to  a  vast 
extent  in  matters  ex  asquo  et  bono,  never  affected  so  bold  a  design  (d). 
On  the  contrary,  it  left  many  matters  of  natural  justice  wholly  unpro- 
vided for,  from  the  difficulty  of  framing  any  general  rules  to  meet 
them,  and  from  the  doubtful  nature  of  the  policy  of  attempting  to  give 
a  legal  sanction  to  duties  of  imperfect  obligation,  such  as  charity, 
gratitude,  and  kiMness,  or  even  to  positive  engagements  of  parties, 
where  they  are  not  founded  in  what  constitutes  a  meritorious  con- 
sideration. Thus,  it  is  well  known  that  in  the  Eoman  law,  as  well  as 
in  the  common  law,  there  are  many  pacts,  or  promises  of  parties  (nude 
pacts),  which  produce  no  legal  obligation,  capable  of  enforcement  in 
foro  externa ;  but  which  are  left  to  be  disposed  of  in  foro 
conscientise  only  (e).  "  Cum  nulla  subest  causa  propter  conven- 
tionem,  hie  constat  non  posse  constitui  obligationem.  Igitur  nuda 
pactio  obligationem  non  parit  "  (/).  And  again:  "  Qui  autem  promisit 
sine  causa,  condicere  quantitatem  non  potest,  quam  non  debet,  sed 
ipsam  obligationem  "  (g).  And  hence  the  settled  distinction,  in  that 
law,  between  natural  obligations,  upon  which  no  action  lay,  but  which 
were  merely  binding  in  conscience,  and  civil  obligations,  which  gave 
origin  to  actions  (h).  The  latter  were  sometimes  called  just,  because  of 
their  perfect  obligation  in  a  civil  sense ;  the  former  merely  equitable, 
because  of  their  imperfect  obligation.  "  Et  justum  appellatur  "  (says 
Wolfius)  ' '  quicquid  fit  secundum  jus  perfectum  alterius ;  sequum  vero 
quod  secundum  imperfectum  "  (f).  Cicero  has  alluded  to  the  double 
sense  of  the  word  equity  in  this  very  connection.  "  .^Equitatis  "  (says 
he)  "  autem  vis  est  duplex;  cujus  altera  directi,  et  veri,  et  justi,  ut 
dicitur,  sequi  et  boni  ratione  defenditur;  altera  ad  vicissitudinem 
referendse  gratise  pertinet;  quod  in  beneficio  gratia,  in  injuria  ultio 
nominatur  "  (fc).  It  is  scarcely  necessary  to  add,  that  it  is  not  in  this 
latter  sense,  any  more  than  in  the  broad  and  general  sense  above 
stated,  which  Ayliffe  has,  with  great  propriety,  denominated  Natural 
Equity,  because  it  depends  on  and  is  supported  by  natural  reason, 
that  equity  is  spoken  of  as  a  branch  of  English  jurisprudence.     The 

tantum,  quod  corapetit  ex  sententia.  Bracton,  Lib.  1,  ch.  4,  p.  3.  See  Dr.  Taylor's 
definition  of  lex  and  jus.  Elem.  Civ.  Law,  pp.  147,  148;  ibid.  pp.  40  to  43,  55,  56, 
91  and  178. 

id)  SeeHeinecc.  Hist.  Edit.  L.  1,  ch.  6;  De  Edictis  Prffitorum,  §  7,  8,  9,  10,  11, 
12  ;  ibid.  §  18,  21  to  30. 

(e)  Ayliffe,  Pand.  B.  4,  tit.  2,  pp.  424,  425 ;  1  Domat,  Civ.  Law,  B.  1,  tit.  1,  §  5, 
art.  1,  6,  9,  13. 

(/)  Dig.  Lib.  2,  tit.  14,  f.  7,  §  4. 

(g)  Dig.  Lib.  12,  tit.  7,  f.  1. 

(h)  Ayliffe,  Pand.  B.  4,  tit.  1,  pp.  420,  421. 

(j)  Wolff.  Instit.  Jur.  Nat.  et  Gent.  P.  1,  ch.  3,  §  83. 

(k)  Cic.  Orat.  Part.  §  37. 


§    2 4.]  NATURE    OF    EQUITY.  3 

latter  falls  appropriately  under  the  head  of  Civil  Equity,  as  defined 
by  the  same  author,  being  deduced  from  and  governed  by  such  civil 
maxims  as  are  adopted  by  any  particular  State  or  community  (i!). 

§  3.  But  there  is  a  more  limited  sense  in  which  the  term  is  often 
used,  and  which  has  the  sanction  of  jurists  in  ancient,  as  well  as  in 
modem  times,  and  belongs  to  the  language  of  common  life,  as  well  as 
to  that  of  juridicial  discussions.  The  sense,  here  alluded  to,  is  that  in 
which  it  is  used  in  contradistinction  to  strict  law,  or  striatum  et 
summum  jus.  Thus,  Aristotle  has  defined  the  very  nature  of  equity 
to  be  the  correction  of  the  law,  wherein  it  is  defective  by  reason  of 
its  universality  (m).  The  same  sense  is  repeatedly  recognised  in  the 
Pandects.  "  In  omnibus  quidem,  maxime  tamen  in  jure,  eequitas 
spectanda  sit.  Quotiens  sequitas,  desiderii  naturalis  ratio,  aut  dubi- 
tatio  juris  moratur,  justis  decretis  res  temperanda  est.  Placuit  in 
omnibus  rebus  prsBcipuam  esse  justitise  sequitatisque,  quam  stricti 
juris  rationem  "  (re).  Grotius  and  Puffendorf  have  both  adopted  the 
definition  of  Aristotle ;  and  it  has  found  its  way,  with  approbation, 
into  the  treatises  of  most  of  the  modern  authors,  who  have  discussed 
the  subject  (o). 

§  4.  In  the  Roman  jurisprudence  we  maj'  see  many  traces  of  this 
doctrine,  applied  to  the  purpose  of  supplying  the  defects  of  the 
customary  law,  as  well  as  to  correct  and  measure  the  interpretation 
of  the  written  and  positive  code.  Domat  accordingly  lays  it  down, 
as  a  general  principle  of  the  civil  law,  that  if  any  case  should  happen, 

(1)  AyMe,  Pand.  B.  1,  tit.  7,  p.  37. 

(m)  Arist.  Ethic.  Nicom.  L.  6,  ch.  14,  cited  1  Wooddes.  Lect.  vii.  p.  193;  Taylor, 
Elem.  of  Civ.  Law,  pp.  91,  92,  93;  Francis,  Maxims,  3;  1  Ponbl.  Eq.  B.  1,  §  2,  p.  5, 
note  (e).  Cicero,  speaking  of  Galba,  says,  that  he  was  accustomed,  "  Malta  pro 
aequitate  contra  jus  dicere."  Cic.  de  Oratore,  Lib.  1,  §  57.  See  also  other  passages 
cited  in  Taylor's  Elem.  of  the  Civ.  Law,  90,  91.  Bracton  defines  equity,  as  contra- 
distinguished from  law  (jtis),  thus  :  "  ^quitas  autem  est  rerum  convenientia,  quae  in 
paribus  causis  paria  desiderat  jura,  et  omnia  bene  coaequiparat ;  et  dicitur  sequitas, 
quasi  aequalitas."     Bracton,  LiS.  1,  ch.  4,  §  6,  p.  3. 

(n)  Dig.  Lib.  50,  tit.  17,  ff.  85,  90;  Cod.  Lib.  3,  tit.  1,  f.  8. 

(o)  Grotius  de  ^Equitate,  ch.  1,  §  3;  Puffend.  Law  of  Nature  and  Nat.  B.  5, 
ch.  12,  §  21,  and  Barbeyrac's  note  (1);  1  Black.  Comm.  61;  1  'V^^ooddes,  Lect.  vii. 
p  193;  Bac.  de  Aug.  Sclent.  Lib.  8,  ch.  3,  Aphor.  32,  34,  45.  Grotius  says: 
"  Proprie  vero  et  singulariter  squitas  est  virtus  voluntatis,  eorrectrix  ejus,  quo  lex 
propter  universalitatem  deficit."  Grotius  de  iEquitate,  ch.  1,  §  2.  "  .^ilquum  est  id 
ipaum,  quo  lex  corrigitur. "  Ibid.  Dr.  Taylor  has  with  great  force  paraphrased  the 
language  of  Aristotle.  That  part  of  unwritten  law,  says  he,  which  .is  called  Equity, 
or  rh  EmeiKes,  is  a  species  of  justice  distinct  from  what  is  written.  It  must 
happen  either  against  the  design  and  inclination  of  the  law-giver,  or  with  his  consent. 
In  the  former  case,  for  instance,  when  several  particular  facts  must  escape  his 
knowledge ;  in  the  other,  when  he  may  be  apprised  of  them,  indeed,  but  by  reason  of 
their  variety  is  not  willing  to  recite  them.  For,  if  a  case  admits  of  an  infinite  variety 
of  circumstances,  and  a  law  must  be  made,  that  law  must  be  conceived  in  general 
terms.  Taylor,  Elem.  Civ.  Law,  92.  And  of  this  infirmity  in  all  laws,  the  Pandects 
give  open  testimony.  "  Non  possunt  omnes  articuli  aingulatim  aut  legibus,  aut 
senatus  consultis  comprehendi ;  sed  cum  in  aliqua  causa  sententia  eorum  manifesta 
est,  is  qui  jurisdictioni  prsoest,  ad  similia  procedere,  atque  ita  jus  dicere  debet."  Dig. 
L.  1,  tit.  3,  ff.  10,  12. 


4  EQUITY   JDKISPRUDENCE.  [CH.    I. 

which  is  not  regulated  by  some  express  or  written  law,  it  should  have 
for  a  law  the  natural  principles  of  equity,  which  is  the  universal  law, 
extending  to  every  thing  (p).  And  for  this  he  founds  himself  upon 
certain  texts  in  the  Pandects,  which  present  the  formulary  in  a  very 
imposing  generality.  "  Hseec  sequitas  suggerit,  etsi  jure  deficiamur, " 
is  the  reason  given  for  allowing  one  person  to  restore  a  bank  or  dam 
in  the  lands  of  another,  which  may  be  useful  to  him,  and  not  injurious 
to  the  other  (g). 

§  5.  The  jurisdiction  of  the  Prsetor  doubtless  had  its  origin  in  this 
application  of  equity,  as  contradistinguished  from  mere  law.  "  Jus 
autem  civile"  (say  the  Pandects)  "est,  quod  ex  legibus,  plebiscitis, 
senatus  consultis,  decretis  principum,  auctoritate  prudentium  venit. 
Jus  praetorium  est,  quod  Pra»tores  introduxerunt,  adjuvandi,  vel  sup- 
plendi,  vel  corrigendi  juris  civilis  gratia,  propter  utilitatem  publicam; 
quod  et  honorarium  dicitur,  ad  honorem  praetorum  sic  nominatum  "(r). 
But,  broad  and  general  as  this  language  is,  we  should  be  greatly 
deceived  if  it  were  to  be  supposed  that  even  the  Praetor's  power 
extended  to  the  direct  overthrow  or  disregard  of  the  positive  law.  He 
was  bound  to  stand  by  that  law  in  all  cases  to  which  it  was  justly 
applicable,  according  to  the  maxim  of  the  Pandects,  "  Quod  quidem 
perquam  durum  est;  sed  ita  lex  scripta  est  "  (s). 

(p)  Domat,  Prel.  Book,  tit.  1,  §  1,  art.  23  See  also  Avliffe,  Pand.  B.  1,  tit.  7, 
p.  38. 

(q)  Dig.  Lib.  39,  tit.  3,  f.  2,  §  5.  Domat  cites  other  texts  not  perhaps  quite  so 
stringent ;  such  as  Dig.  Lib.  27,  tit.  1,  f.  13,  §  7 ;  ibid.  Lib.  47,  tit.  20,  f.  7.  Dr.  Tay- 
lor has  given  many  texts  to  the  same  purpose.  Elem.  Civ.  Law,  pp.  90,  91.  There 
was  a  known  distinction  in  the  Eoman  law  on  this  subject.  When  a  right  was  founded 
in  the  express  words  of  the  law,  the  actions  grounded  on  it  were  denominated  Aetiones 
Directae ;  where  they  arose  upon  a  benignant  extension  of  the  words  of  the  law  to 
other  cases,  not  within  the  terms,  but  within  what  we  should  call  the  equity  of 
the  law,  they  were  denominated  Aetiones  Utiles.     Taylor,  Elem.  Civ.  Law,  93. 

(r)  Dig.  Lib.  1,  tit.  1,  f.  7.  "  Sed  et  eas  aetiones,  quae  legibus  prodit^ 
sunt  (say  the  Pandects)  si  lex  justa  ac  necessaria  sit,  supplet  Praetor  in  eo,  quod 
legi  deest."  Dig.  Lib.  19,  tit.  5,  f.  11.  Heineccius,  speaking  of  the  Praetor's 
authority,  says  :  His  Edictis  multa  innovata,  adjuvandi,  supplendi,  corrigendi  juris 
civilis  gratia,  obtentuque  utilitatis  publicae.  1  Heinecc.  Elem.  Pand.  P.  1,  Lib.  1, 
§  42. 

{s)  Dig.  Lib.  40,  tit.  9,  f.  12,  §  1.  See  also  3  Black.  Comm.  430,  431;  1  Wood- 
des.  Lect.  vii.  pp.  192  to  200.  Dr.  Taylor  (Elem.  Civ.  Law,  p.  214)  has  therefore 
observed  that,  for  this  reason,  this  branch  of  the  Eoman  law  was  not  reckoned  as 
part  of  the  jus  civile  scriptum  by  Papinian,  but  stands  in  opposition  to  it.  Ana 
thus,  as  we  distinguish  between  common  law  and  equity,  there  were  with  that 
people  aetiones  civiles  et  prsetorise,  et  obligationes  civiles,  et  praetoriae.  The  Praetor 
was  therefore  called  Gustos,  non  conditor  juris;  judicia  exercere  potuit;  jus  facere  non 
potuit ;  dicendi,  non  condendi  juris  potestatem  habuit ;  juvare,  supplere,  interpretari, 
mitigare  jus  civile  potuit ;  mutate  vel  tollere  non  potest.  The  praetorian  edicts  are  not 
properly  law,  though  they  may  operate  like  law.  And  Cicero,  speaking  of  contracts 
bonae  fidei,  says,  in  allusion  to  the  same  jurisdiction  .  In  his  magni  esse  judicis 
statuere  (praesertim  cum  in  plerisque  essent  judicia  contraria),  quid  quemque  cuique 
prEBstare  oporteret ;  that  is,  he  should  decide  according  to  equity  and  conscience.  Cic. 
de  Officiis,  Lib.  3,  cap.  17.  Dr.  Taylor  has,  in  another  part  of  his  work,  gone  at 
large  into  equity  and  its  various  meanings  in  the  civil  law.  Taylor,  Elem.  Civ.  Law, 
pp.  90  to  98. 


§    5 — 7.]  NATURE   OF   EQUITY.  5 

§  6.  But  a  more  general  way  in  which  this  sense  of  equity,  as 
contradistinguished  from  mere  law,  or  strictum  jus,  is  applied,  is  to 
the  interpretation  and  limitation  of  the  words  of  positive  or  written 
laws :  by  construing  them,  not  according  to  the  letter,  but  according 
to  the  reason  and  spirit  of  them  (t).  Mr.  Justice  Blackstone  has 
alluded  to  this  sense  in  his  Commentaries,  where  he  says  :  "  From  this 
method  of  interpreting  laws  by  the  reason  of  them  arises  what  we  call 
equity  "  (m)  ;  and  more  fully  in  another  place,  where  he  says  :  "  Equity, 
in  its  true  and  genuine  meaning,  is  the  soul  and  spirit  of  all  law ; 
positive  law  is  construed,  and  rational  law  is  made  by  it.  In  this, 
equity  is  synonymous  with  justice;  in  that,  to  the  true  and  sound 
interpretation  of  the  rule  "   (x). 

§  7.  In  this  sense  equity  must  have  a  place  in  every  rational  system 
of  jurisprudence,  if  not  in  name,  at  least  in  substance  (y).  It  is  impos- 
sible that  any  code,  however  minute  and  particular,  should  embrace 
or  provide  for  the  infinite  variety  of  human  affairs,  or  should  furnish 
rules  applicable  to  all  of  them.  "  Neque  leges  neque  senatus  consulta 
ita  scribi  possunt  "  (says  the  Digest)  "  ut  omnes  casus,  qui  quandoque 
inciderint,  comprehendantur ;  sed  suf&cit  ea,  quas  plerumque  accideunt 
contineri  "  (z).  Every  system  of  laws  must  necessarily  be  defective; 
and  cases  must  occur,  to  which  the  antecedent  rules  cannot  be  applied 
without  injustice,  or  t-o  which  they  cannot  be  applied  at  all.  It  is 
the  office,  therefore,  of  a  judge  to  consider  whether  the  antecedent 
rule  does  apply,  or  ought,  according  to  the  intention  of  the  law-giver, 
to  apply  to  a  given  case ;  and  jf  there  are  two  rules,  nearly  approaching 
to  it,  but  of  opposite  tendency,  which  of  them  ought  to  govern  it; 
and  if  there  exists  no  rule  applicable  to  all  the  circumstances,  whether 
the  party  should  be  remediless,  or  whether  the  rule  furnishing  the 
closest  analogy  ought  to  be  followed.  The  general  words  of  a  law 
may  embrace  all  cases;  and  yet  it  may  be  clear,  that  all  could  not 
have  been  intentionally  embraced;  for  if  they  were,  the  obvious  objects 
of  the  legislation  might  or  would  be  defeated.     So,  words  of  a  doubtful 

(i)  Plowden,  Comm.  pp.  465,  466. 

(u)  1  Black.  Comm.  pp.  61,  62. 

(x)  3  Black.  Comm.  p.  429.  See  also  Taylor,  Elem.  Civ.  Law,  pp.  96,  97; 
Plowd.  Comm.  p.  465,  Eeporter's  note.  Dr.  Taylor  has  observed  that  the  great 
difficulty  is,  to  distinguish  between  that  equity,  which  is  required  in  all  law  what- 
soever, and  which  makes  a  very  important  and  a  very  necessary  branch  of  the  jus 
scriptum ;  and  that  equity,  which  is  opposed  to  written  and  positive  law,  and  stands 
in  contradistinction  to  it.     Taylor,  Elem.  Civ.  Law,  p.  90. 

iy)  See  1  Eonbl.  Equity,  B.  1,  §  3,  p.  24,  note  (h);  Plowden,  Comm.  pp.  465,  466. 
Lord  Bacon  said  in  his  Argument  on  the  jurisdiction  of  the  Marches,  there  is  no 
law  under  heaven  which  is  not  supplied  with  equity ;  for  summum  jus  sumraa  injuria  ; 
or  as  some  have  it,  summa  lex  summa  crux.  And,  therefore,  all  nations  have  equity. 
4  Bac.  Works,  p.  274.  Plowden,  in  his  note  to  his  Eeports,  dwells  much  (pp.  465,  466) 
■on  the  nature  of  equity  in  the  interpretation  of  statutes,  saying,  "  Eatio  legis  est 
anima  legis."  And  it  is  a  common  maxim  in  the  law  of  England,  that  "  Apices  juris 
non  sunt  jura.."     Branch's  Maxims,  p.  12;  Co.  Jjitt.  304  (b). 

(z)  Dig.  Lib.  1,  tit.  3,  f.  10. 


6  EQUITY   JURISPEDDENCE.  [CH.    I. 

import  may  be  used  in  a  law,  or  words  susceptible  of  a  more  enlarged, 
or  of  a  more  restricted  meaning,  or  of  two  meanings  equally 
appropriate  (a).  The  question,  in  all  such  cases,  must  be,  in  what 
sense  the  words  are  designed  to  be  used ;  and  it  is  the  part  of  a  judge  to 
look  to  the  objects  of  the  legislature,  and  to  give  such  a  construction 
to  the  words,  as  will  best  further  those  objects.  This  is  an  exercise 
of  the  power  of  equitable  interpretation.  It  is  the  administration  of 
equity,  as  contradistinguished  from  a  strict  adherence  to  the  mere 
letter  of  the  law.  Hence  arises  a  variety  of  rules  in  interpretation  of 
laws,  according  to  their  nature  and  operation,  whether  they  are 
remedial,  or  are  penal  laws;  whether  they  are  restrictive  of  general 
right,  or  in  advancement  of  public  justice  or  policy;  whether  they 
are  of  universal  application,  or  of  a  private  and  circumscribed  intent. 
But  this  is  not  the  place  to  consider  the  nature  or  application  of 
those  rules  (b). 

§  8.  It  is  of  this  equity,  as  correcting,  mitigating,  or  interpreting 
the  law,  that,  not  only  civilians,  but  common-law  writers,  are  most 
accustomed  to  speak  (c) ;  and  thus  many  persons  are  misled  into  the 

(a)  It  is  very  easy  to  see  from  what  sources  Jlr.  Charles  Butler  drew  his  own  state- 
ment (manifestly,  as  a  description  of  English  equity  jurisprudence,  incorrect,  as 
Professor  Park  has  shown),  "that  equity,  as  distinguished  from  law,  arises  from  the 
inability  of  human  foresight  to  establish  any  rule,  which,  however  salutary  in 
general,  is  not  in  some  particular  cases,  evidently  unjust  and  oppressive,  and  operates 
beyond  or  in  opposition  to  its  intent,  &c.  The  grand  reason  for  the  interference 
of  a  court  of  equity  is,  that  the  imperfection  of  the  legal  remedy,  in  consequence  of  the 
universality  of  legislative  provisions,  may  be  repressed."  1  Butler's  Eeminisc.  37, 
38,  39;  Park's  Introd.  Lect.  5,  6.  Now,  Aristotle,  or  Cicero,  or  a  Eoman  Prsetor, 
or  a  Continental  Jurist,  or  a  Publicist  of  modern  Europe  might  have  used  these 
expressions,  as  a  description  of  general  equity ;  but  it  would  have  given  no  just 
idea  of  equity,  as  administered  under  the  municipal  jurisprudence  of  England. 

(b)  See  Grotius  de  Jure  Belli  ac  Pacis,  Lib.  3,  ch.  20,  §  47,  pp.  1,  2;  Grotius  de 
.^quitate,  ch.  1.  This  paragraph  is  copied  very  closely  from  the  article  Equity,  in 
Dr.  Lieber's  Encyclopaedia  Americana,  a  licence  which  has  not  appropriated  another 
person's  labours.  There  will  be  found  many  excellent  rules  of  interpretation  of 
Laws  in  Euthevforth's  Ins.titutes  of  Natural  Law,  B.  2,  ch.  7;  in  Bacon's  Abridgment, 
title  Statute;  in  Domat  on  the  Civil  Law  (Prelim.  Book,  tit.  1,  §  21 ;  and  in  1  Black. 
Comm.  Introduction,  pp.  58  to  62. 

There  are  yet  other  senses,  in  which  equity  is  used,  which  might  be  brought  be- 
fore the  reader.  The  various  senses  are  elaborately  collected  by  Oldendorpius ,  in 
his  work  De  Jure  et  ^quitate  Disputatio ;  and  he  finally  offers,  what  he  deems  »  very 
exact  definition  of  equity  in  its  general  sense.  "  jEquitas  est  judicium  animi,  ex 
vera  ratione  petitum,  de  circumstantiis  rerum,  ad  honestatem  vitae  pertinentium, 
cum  incidunt,  recte  discemens,  quid  fieri  aut  non  fieri  oporteat."  This  seems  but 
another  name  for  a  system  of  ethics.  Grotius  has  in  one  short  paragraph  (De 
.Equitate,  ch.  1,  §  2)  brought  together  the  different  senses  in  a  clear  and  exact  manner. 
"  Et  ut  de  Eequitate  primum  loquamur,  scire  oportet,  sequitatem  aut  Ecquum  de  omni 
interdum  jure  dici,  ut  cum  jurisprudentia  ars  boni  et  aequi  dicitur;  interdum  de  jure 
natnrali  absolute,  ut  cum  Cicero  ait,  jus  legibus,  moribus,  et  aequitate  constare ; 
alias  vero  de  hisce  rebus,  quas  lex  non  exacte  definit,  sed  arbitrio  viri  boni  per- 
mittit.  Ssepe  etiam  de  jure  aliquo  civili  p'roprius  ad  jus  naturale  aecedente,  idque 
respectu  alterius  juris,  quod  paulo  longius  recedere  videtur,  ut  jus  Prsetorium  et 
quipdam  jurisjprudentias  interpretationes.  Proprie  vero  et  singulariter  sequitas  est 
virtus  voluntatis,  correctrix  ejus,  in  quo  lex  propter  universalitatem  deficit." 

(c)  Merlin,   Eepertoire   Bquite.        Grounds   and   Rudim.   of   the   Law    (attributed 


§    8,    9.]  NATURE    OF   EQUITY.  7 

false  notion,  that  this  is  the  real  and  peculiar  duty  of  courts  of  equity. 
St.  Germain,  after  alluding  to  the  general  subject  of  equity,  says: 
"  In  some  eases  it  is  necessary  to  leave  the  words  of  the  law,  and  to 
follow  that  reason  and  justice  requireth,  and  to  that  intent  equity  is 
ordained,  that  is  to  say,  to  temper  and  mitigate  the  rigour  of  the  law, 
&a.  And  so  it  appeareth,  that  equity  taketh  not  away  the  very  right, 
but  only  that  that  seemeth  not  to  be  right,  by  the  general  words  of 
the  law  "  ((?).  And  then  he  goes  on  to  suggest  the  other  kind  of  equity, 
as  administered  in  chancery,  to  ascertain  "  whether  the  plaintiff  hath 
title  in  conscience  to  recover  or  not  "  (e).  And,  in  another  place,  he 
states :  ' '  Equity  is  a  rightwiseness,  that  considereth  all  the  particular 
circumstances  of  the  deed,  which  is  also  tempered  with  the  sweetness 
of  mercy  "  (/).  Another  learned  author  lays  down  doctrines  equally 
broad.  "  As  summum  jus  "  (says  he)  "  summa  est  injuria-,  as  it  cannot 
consider  circumstances;  and  as  this  [equity]  takes  in  all  the  circum- 
stances of  the  case,  and  judges  of  the  whole  matter  according  to  good 
conscience,  this  shows  both  the  use  and  excellence  of  equity  above 
any  prescribed  law."  Again:  "Equity  is  that  which  is  commonly 
called  equal,  just,  and  good;  and  is  a  mitigation  or  moderation  of 
the  common  law,  in  some  circumstances,  either  of  the  matter,  person, 
or  time;  and  often  it  dispenseth  with  the  law  itself"  (g).  "The 
matters,  of  which  equity  holdeth  cognizance  in  its  absolute  power, 
are  such  as  are  not  remediable  at  law ;  and  of  them  the  sorts  may  be 
said  to  be  as  infinite,  almost,  as  the  different  affairs  conversant  in 
human  life"  (h).  And,  he  adds,  that  "equity  is  so  extensive  and 
various,  that  every  particular  case  in  equity  may  be  truly  said  to  stand 
upon  its  own  particular  circumstances ;  and,  therefore,  under  favour, 
I  apprehend  precedents  not  of  that  great  use  in  equity,  as  some  would 
contend;  but  that  equity  thereby  may  possibly  be  made  too  much  a 
science  for  good  conscience  "  (t). 

§  9.  This  description  of  equity  differs  in  nothing  essential  from 
that  given  by  Grotius  and  Puffendorf  (k),  as  a  definition  of  general 
equity,  as  contradistinguished  from  the  equity  which  is  recognised  by 
the  mere  municipal  code  of  a  particular  nation.     And,  indeed,  it  goes 

sometimes  to  Francis),  pp.  3,  5,  edit.  1751 ;  1  Fonbl.  Equity,  B.  1,  ch.  1,  §  2,  note  (e)  ; 
1  Wooddes.  Lect.  vii.  pp.  192  to  200;  Pothier,  Pand.  Lib.  1,  tit.  3,  art.  4,  §  11  to  27. 

(d)  Dialogue  1,  ch.  16. 

(e)  Ibid.  1,  ch.  17. 
(/)  Ibid.  ch.  16. 

(g)  Grounds  and  Eudim.  pp.  5,  6,  edit.  1751. 

(h)  Grounds  and  Eudim.  p.  6,  edit.  1751. 

(i)  Grounds  and  Eudim.  pp.  5,  6,  edit.  1751.  Yet  Francis  (or  whoever  else  was 
the  author)  is  compelled  to  admit,  that  there  are  many  cases  in  which  there  is  no 
relief  to  be  had,  either  at  law  or  in  equity  itself;  but  the  same  is  left  to  the  con- 
science of  the  party,  as  a  greater  inconvenience  would  thence  follow  to  the  people 
in  general.     Francis,  Max.  p.  5. 

(k)  Grotius  de  ^^quitate,  ch.  1,  §  3,  12;  Pnffend.  Elem.  Juris.  Univ.  L.  1,  §  22, 
23,  cited  1  Fonbl.  Eq.  B.  1,  ch.  1,  §  2,  note  (e),  p.  6. 


8  EQUITY  JURISPRUDENCE.  [CH.    I. 

the  full  extent  of  embracing  all  things,  which  the  law  has  not  exactly 
defined,  but  leaves  to  the  arbitrary  description  of  a  judge;  or,  in  the 
language  of  Grotius,  ' '  de  hisoe  rebus,  quas  lex  non  exacte  definit,  sed 
arbitrio  viri  boni  permittit"  (I).  So  that,  in  this  view  of  the  matter, 
an  English  court  of  equity  would  seem  to  be  possessed  of  exactly  the 
same  prerogatives  and  powers  as  belonged  to  the  Praetor's  forum  in 
the  Roman  law  (m). 

§  10.  Nor  is  this  description  of  the  equity  jurisprudence  of  England 
confined  to  a  few  text-writers.  It  pervades  a  large  class,  and  possesses 
the  sanction  of  many  high  authorities.  Lord  Bacon  more  than  once 
hints  at  it.  In  his  Aphorisms  he  lays  it  down,  ' '  Habeant  similiter 
Curiae  Praetoriae  potestatem  tam  subveniendi  contra  rigorem  legis, 
quam  supplendi  defectum  legis  "  (n).  And  on  the  solemn  occasion  of 
accepting  the  office  of  Chancellor,  he  said :  Chancery  is  ordained  to 
supply  the  law,  and  not  to  subvert  the  law  (o)^  Finch,  in  his  Treatise 
on  the  Law,  says,  that  the  nature  of  equity  is  to  amplify,  enlarge,  and 
add  to  the  letter  of  the  law  (p).  In  the  Treatise  of  Equity,  attributed 
to  Mr.  Ballow,  and  deservedly  held  in  high  estimation,  language 
exceedingly  broad  is  held  on  this  subject.  After  remarking,  that  there 
will  be  a  necessity  of  having  recourse  to  the  natural  principles,  that 
what  is  wanting  to  the  finite  may  be  supplied  out  of  that  which  is 
infinite;  and  that  this  is  properly  what  is  called  equity,  in  opposition 
to  strict  law,  he  proceeds  to  state:  "  And  thus  in  chancery,  every 
particular  ease  stands  upon  its  own  circumstances;  and  although  the 
common  law  will  not  decree  against  the  general  rule  of  law,  yet 
chancery  doth,  so  as  the  example  introduce  not  a  general  mischief. 
Every  matter,  therefore,  that  happens  inconsistent  with  the  design  of 
the  legislator,  or  is  contrary  to  natural  justice,  rnay  find  relief  here. 
For  no  man  can  be  obliged  to  say  anything  contrary  to  the  law  of 
nature ;  and  indeed  no  man  in  his  senses  can  be  presumed  willing  to 
oblige  another  to  it"  (g). 

§  11.  The  author  has,  indeed,  qualified  these  propositions  with  the 
suggestion :  ' '  But  if  the  law  has  determined  a  matter  with  all  its 
circumstances,  equity  cannot  intermeddle."  But,  even  with  this 
qualification,   the  propositions   are   not  maintainable,    in    the    equity 

(I)  Grotius  de  iEqiiifcate,  ch.  1,  §  2;  1  Ponbl.  Equity,  B.  1,  ch.  1,  §  2,  note  (c). 

(m)  Dig.  Lib.  1,  f.  7.  See  also  Heinecc.  De  Edict.  Praetorum,  Lib.  1,  ch.  6,  §  8 
to  13;  ibid.  §  18  to  30;  Dr.  Taylor's  Elem.  Civ.  Law,  213  to  216;  ibid.  92,  93;  be 
Lolme  on  Eng.  Const.  B.  1,  ch.  11.  Lord  Kaims  does  not  hesitate  to  say,  that  the 
powers  assumed  by  our  courts  of  equity  are  in  effect  the  same  that  were  assumed  by 
the  Eoman  Prsetor  from  necessity,  without  any  express  authority.  1  Kaims,  Eq. 
Introd.  19. 

(n)  Bac.  De  Aug.  Scient.  Lib.  8,  ch.  3,  Aphor.  35,  45. 

(o)  Bac.  Speech.  4;  Bac.  Works,  488. 

(p)  Finch's  Law,  p.  20. 

iq)  1  Fonbl.  Eq.  B.  1,  ch.  1,  §  3.  The  author  of  Eunomus  describes  the  original 
jurisdiction  of  the  Court  of  Chancery,  as  a  court  of  equity,  to  be  "  the  power  of 
moderating  the  summum  jus."    Eunomus,  Dial.  3  §  60. 


§    10 — 13.]  NATURE    OF    EQUITY.  9 

jurisprudence  of  England,  in  the  general  sense  in  which  i>hey  are 
stated.  For  example,  the  first  proposition,  that  equity  will  relieve 
against  a  general  rule  of  law,  is  (as  has  been  justly  observed)  neither 
sanctioned  by  principle  nor  by  authority  (r).  For,  though  it  may  be 
true  that  equity  has,  in  many  cases,  decided  differently  from  courts 
of  law,  yet  it  will  be  found  that  these  cases  involved  circumstances  to 
which  a  court  of  law  would  not  advert;  but  which,  in  point  of  sub- 
stantial justice,  were  deserving  of  particular  consideration ;  and  which 
a  court  of  equity,  proceeding  on  principles  of  substantial  justice,  felt 
itself  bound  to  respect  (s). 

§  12.  Mr.  Justice  Blackstone  has  taken  considerable  pains  to  refute 
this  doctrine.  "  It  is  said  "  (he  remarks)  "  that  it  is  the  business  of 
a  court  of  equity,  in  England,  to  abate  the  rigour  of  the  common 
law  (t).  But  no  such  power  is  contended  for.  Hard  was  the  case  of 
bond  creditors,  whose  debtor  devised  away  his  real  estate ;  rigorous  and 
unjust  the  rule  which  put  the  devisee  in  a  better  condition  than  the 
heir;  yet  a  court  of  equity  had  no  power  to  interfere.  Hard  is  the 
common  law  still  subsisting,  that  land  devised,  or  descending  to  the 
heir,  should  not  be  liable  to  simple  contract  debts  of  the  ancestor  or 
devisor,  although  the  money  was  laid  out  in  purchasing  the  very  land ; 
and  that  the  father  shall  never  immediately  succeed  as  heir  to  the 
real  estate  of  the  son.  But  a  court  of  equity  can  give  no  relief;  though, 
in  both  these  instances,  the  artificial  reason  of  the  law,  arising  from 
feudal  principles,  has  long  since  ceased"  (w).  And  although  these 
remarks  of  Mr.  Justice  Blackstone  have  now  lost  their  force  owing 
to  the  Statute  against  Fraudulent  Devises  (3  Will.  &  Mary,  c.  14,  s.  2), 
which  rendered  the  devisee  equally  with  the  heir  liable  to  the  bond 
debts  of  the  deceased,  and  the  8  &  4  Will.  4  c.  104,  which  made  the 
lands  of  a  deceased  debtor  liable  to  his  simple  contract  debts,  yet  from 
the  very  fact  that  legislation  was  necessary,  it  appears  that  it  was 
not  within  the  province  of  courts  of  equity  to  relieve  the  hardships 
complained  of.  And  (not  to  multiply  instances)  what  could  be  more 
harsh,  or  indefensible,  than  was  the  rule  of  the  common  law%  by  which 
a  husband  might  receive  an  ample  fortune  in  personal  estate,  through 
his  wife,  and  by  his  own  act,  or  will,  strip  her  of  every  farthing,  and 
leave  her  a  beggar? 

§  13.  A  very  learned  judge  in  equity,  in  one  of  his  ablest  judg- 
ments, has  put  this  matter  in  a  very  strong  light  (x).  "The  law  is 
clear  "  (said  he),  "  and  courts  of  equity  ought  to  follow  it  in  their 
judgments   concerning   titles   to    equitable    estates;     otherwise    great 


(r)  Com.  Dig.  Chancery,  3  P.  8. 

(s)  1  Ponbl.  Eq.  B.  1,  ch.  1,  §  3,  note  (g) ;  1  Dane's  Abridg.  ch.  9,  art.  1,  §  2, 
8 ;  Kemp  v.  Pryor,  7  Ves.  249,  250. 

(t)  Grounds  and  Eudim.  p.  74  (Max.  105),  edit.  1751. 

(u)  3  Black.  Comm.  430.     See  Com.  Dig.  Chancery,  3  F.  8. 

(x)  Sir  Joseph  Jekyll,  in  Cowper  v.  Cowper,  2  P.  Wms.  753. 


10  '  EQUITY   JURISPRUDENCE.  [CH.    1. 

uncertainty  and  confusion  would  ensue.  And,  though  proceedings  in 
equity  are  said  to  be  secundum  discretionem  boni  viri;  yet  when  it 
is  asked  "  Vir  bonus  est  quis?  "  the  answer  is  "  Qui  consulta  patrum, 
qui  leges  juraque  servat. "  And,  as  it  is  said  in  Book's  Case  (5  Rep. 
99  b),  that  discretion  is  a  science,  not  to  act  arbitrarily,  according  to 
men's  wills,  and  private  affections;  so  that  discretion,  which  is 
executed  here,  is  to  be  governed  by  the  rules  of  law  and  equity,  which 
are  not  to  oppose,  but  each  in  its  turn  to  be  subservient  to  the  other. 
This  discretion,  in  some  cases,  follows  the  law  implicitly;  in  others, 
assists  it,  and  advances  the  remedy ;  in  others,  again,  it  relieves  against 
the  abuse,  or  allays  the  rigour  of  it.  But  in  no  case  does  it  contra- 
dict or  overturn  the  grounds  or  principles  thereof,  as  has  been 
sometimes  ignorantly  imputed  to  the  court.  That  is  a  discretionary 
power  which  neither  this  nor  any  other  court,  not  even  the  highest, 
acting  in  a  judicial  capacity,  is  by  the  constitution  entrusted  with  "  (y). 

§  14.  The  next  proposition,  that  every  matter  that  happens  incon- 
sistent with  the  design  of  the  legislator,  or  is  contrary  to  natural 
justice,  may  find  relief  in  equity,  is  equally  untenable.  There  are 
many  cases  against  natural  justice,  which  are  left  wholly  to  the  con- 
science of  the  party,  and  are  without  any  redress,  equitable  or  legal. 
And  so  far  from  a  court  of  equity  supplying  universally  the  defects 
of  positive  legislation,  or  peculiarly  carrying  into  effect  the  intent,  as 
contradistinguished  from  the  text  of  the  legislature,  it  is  governed 
by  the  same  rules  of  interpretation  as  a  court  of  law ;  and  is  often 
compelled  to  stop  where  the  letter  of  the  law  stops.  It  is  the  duty 
of  every  court  of  justice,  whether  of  law  or  of  equity,  to  consult  the 
intention  of  the  legislature.  And,  in  the  discharge  of  this  duty,  a 
court  of  equity  is  not  invested  with  a  larger  or  a  more  liberal  dis- 
cretion than  a  court  of  law. 

§  15.  Mr.  Justice  Blackstone  has  here  again  met  the  objection  in 
a  forcible  manner.  "It  is  said  "  (says  he)  "  that  a  court  of  equity 
determines  according  to  the  spirit  of  the  rule,  and  not  according  to 
the  strictness  of  the  letter.  But  so  also  does  a  court  of  law.  Both, 
for  instance,  are  equally  bound,  and  equally  profess  to  interpret 
statutes  according  to  the  true  intent  of  the  legislature.  In  general, 
all  cases  cannot  be  foreseen;  or,  if  foreseen,  cannot  be  expressed. 
Some  will  arise  which  will  fall  within  the  meaning,  though  not  within 
the  words  of  the  legislator;  and  others,  which  may  fall  within  the 
letter,  may  be  contrary  to  his  meaning,  though  not  expressly  excepted. 
These  cases,  thus  out  of  the  letter,  are  often  said  to  be  within  the 
equity  of  an  Act  of  Parliament;  and  so,  cases  within  the  letter,  are 
frequently  out  of  the  equity.    Here,  by  equity,  we  mean  nothing  but  the 

(y)  Sir  Thomas  Clarke,  in  pronouncing  his  judgment  in  the  case  of  Burgess  v. 
Wheats  (1  W.  Black.  123),  has  adopted  this  very  language,  and  given  it  his  full 
approbation.  See  also  Fry  v.  Porter.  1  Mod.  300 ;  Grounds  and  Eudim.  p.  65  (Max. 
92),  edit.  1751. 


§    14 17.]  NATURE   OF   EQUITY.  11 

sound  interpretation  of  the  law.  .  .  .  But  there  is  not  a  single  rule  of 
interpreting  laws,  whether  equitably  or  strictly,  that  is  not  equally 
used  by  the  judges  in  the  courts  both  of  law  and  equity.  The  con- 
struction must  in  both  be  the  same ;  or,  if  they  differ,  it  is  only  as  one 
court  of  law  may  happen  to  differ  from  another.  Each  endeavours 
to  fix  and  adopt  the  true  sense  of  the  law  in  question.  Neither  can 
enlarge,  diminish,  or  alter  that  sense  in  a  single  title  "  (z). 

§  16.  Yet  it  is  by  no  means  uncommon  to  represent  that  the 
peculiar  duty  of  a  court  of  equity  is  to  supply  the  defects  of  the 
common  law,  and  next,  to  correct  its  rigour  or  injustice  (a).  Lord 
Kaims  avows  this  doctrine  in  various  places,  and  in  language  singu- 
larly bold.  "  It  appears  now  clearly  "  (says  he)  "  that  a  court  of 
equity  commences  at  the  limits  of  the  common  law,  and  enforces 
benevolence,  where  the  law  of  nature  makes  it  our  duty.  And  thus  a 
court  of  equity,  accompanying  the  law  of  nature  in  its  general  refine- 
ments, enforces  every  natural  duty  that  is  not  provided  for  at  common 
law  "  (h).  And  in  another  place  he  adds,  a  court  of  equity  boldly  under- 
takes "  to  correct  or  mitigate  the  rigour,  and  what,  in  a  proper  sense, 
may  be  termed  the  injustice  of  the  common  law  "  (c).  And  Mr.  Wood- 
deson,  without  attempting  to  distinguish  accurately  between  general  or 
natural,  and  municipal  or  civil  equity,  asserts,  that  "  equity  is  a 
judicial  interpretation  of  laws,  which,  presupposing  the  legislator-  to 
have  intended  what  is  just  and  right,  pursues  and  effectuates  that 
intention  "  {d). 

§  17.  The  language  of  judges  has  often  been  relied  on  for  the  same 
purpose;  and,  from  the  unqualified  manner  in  which  it  is  laid  down, 
too  often  justifies  the  conclusion.  Thus,  Sir  John  Trevor  (the  Master 
of  the  Eolls),  in  his  able  judgment  in  Dudley  v.  Dudley  (e),  says: 
Now,  equity  is  no  part  of  the  law,  but  a  moral  virtue,  which  quali- 
fies, moderates,  and  reforms  the  rigour,  hardness,  and  edge  of  the 
law,  and  is  a  universal  truth.  It  does  also  assist  the  law,  where  it  is 
defective  and  weak  in  the  constitution  (which  is  the  life  of  the  law), 
and  defends  the  law  from  crafty  evasions,  delusions,  and  mere 
subtleties,  invented  and  contrived  to  evade  and  elude  the  common 
law,  whereby  such  as  have  undoubted  right  are  made  remediless. 
And  thus  is  the  office  of  equity  to  protect  and  support  the  common 
law   from    shifts    and   contrivances    against   the   justice    of    the    law. 

(z)  3  Black.  Comm.  431;  1  Dane,  Abr.  ch.  9,  art.  3,  §  8. 

(a)  1  Kaims  on  Equity,  B.  1,  p.  40. 

(b)  1  Kaime  on  Equity,  Introd.  p.  12. 

(c).  1  Kaims  on  Equity,  Introd.  p.  15.  Lord  Kaims'  remarks  are  entitled  to  the 
more  consideration  because  they  seem  to  have  received,  in  some  measure  at  least,  the 
approbation  of  Lord  Hardwicke  (Parke's  Hist,  of  Chan.  Appx.  501,  502;  ibid.  333, 
334) ;  and  also  from  Mr.  Justice  Blackstone  having  thought  them  worthy  of  a 
formal  refutation  in  his  Commentaries.     3  Black.  Comm.  436. 

(d)  1  Wooddes.  Lect.  vii.  p.  192. 

(e)  Free.  Ch.  241,  244;  1  Wooddes.  Lect.  vii.  p.  192. 


12  EQUITY   JURISPRUDENCE.  [CH.    I. 

Equity,  therefore,  does  not  destroy  the  law,  nor  create  it,  but  assists 
it."  Now,  however  true  this  doctrine  may  be  sub  modo,  to  suppose 
it  true  in  its  full  extent  would  be  a  grievous  error. 

§  18.  There  is  another  suggestion,  which  has  been  often  repeated; 
and  that  is,  that  courts  of  equity  are  not,  and  ought  not,  to  be  bound 
by  precedents;  and  that  precedents,  therefore,  are  of  little  or  no  use 
there;  but  that  every  case  is  to  be  decided  upon  circumstances, 
according  to  the  arbitration  or  discretion  of  the  judge,  acting  according 
to  his  own  notions,  ex  sequo  et  bono  (/).  Mr.  Justice  Blackstone, 
addressing  himself  to  this  erroneous  statement,  has  truly  said :  ' '  The 
■system  of  our  courts  of  equity  is  a  laboured  connected  system, 
governed  by  established  rules,  and  bound  down  by  precedents,  from 
which  they  do  not  depart-,  although  the  reason  of  some  of  them  may 
perhaps  be  liable  to  objection.  .  .  .  Nay,  sometimes  a  precedent 
is  so  strictly  followed,  that  a  particular  judgment,  founded  upon 
special  circumstances,  gives  rise  to  a  general  rule  "  {g).  And  he  after- 
wards adds:  "The  systems  of  jurisprudence  in  our  courts  of  la%v 
and  equity  are  now  equally  artificial  systems,  founded  on  the  same 
principles  of  justice  and  positive  law,  but  varied  by  different  usages 
in  the  forms  and  mode  of  their  proceedings  "  Qi).  The  value  of  prece- 
dents, and  the  importance  of  adhering  to  them,  were  deeply  felt  in 
ancient  times,  and  nowhere  more  than  in  the  Praetor's  forum.  "  Con- 
suetudinis  autem  jus  esse  putatur  id  "  (says  Cicero)  "  quod,  voluntate 
omnium,  sine  lege,  vetustas  comprobarit.  In  ea  autem  jura  sunt, 
quasdam  ipsa  jam  certa  propter  vetustatem ;  quo  in  genere  et  alia 
sunt  multa,  et  eorum  multo  maxima  pars,  quae  Praetores  edicere  con- 

(/)  See  Francis,  Max.  pp.  5,  6;  Selden,  cited  in  3  Black.  Comm.  432,  433,  435; 
1  Kaims,  Eq.  pp.  19,  20. 

(g)  3  Black  Comm.  432,  433. 

(h)  3  Black.  434;  ibid.  440,  441;  1  Kent,  Comm.  Lect.  21,  pp.  489,  490  (2nd 
edition).  The  value  and  importance  of  precedents  in  chancery  were  much  insisted 
upon  by  Lord  Keeper  Bridgman,  in  Fry  v.  Porter  (1  Mod.  300,  307).  See  also  1 
Wooddes.  Lect.  vii.  pp.  200,  201,  202.  Lord  Hardwicke,  in  his  letter  to  Lord  Kaims, 
on  the  subject  of  equity,  in  answer  to  the  question  whether  a  court  of  equity  ought 
to  be  governed  by  any  general  rules,  said,  "  Some  general  rules  there  ought  to  be; 
for  otherwise  the  great  inconvenience  of  jus  vagum  et  incertuin  will  follow.  And 
yet  the  Praetor  must  not  be  so  absolutely  and  invariably  bound  by  them,  as  the  judges 
are  by  the  rules  of  the  common  law.  For  if  they  were  so  bound,  the  consequence 
would  follow,  which  you  very  judiciously  state,  that  he  must  sometimes  pronounce 
decrees  which  would  be  materially  unjust ;  since  no  rule  can  be  equally  just  in  the 
application  to  a  whole  class  of  cases,  that  are  far  from  being  the  same  in  every 
circumstance."  (Parke's  Hist,  of  Chancery,  pp.  501,  506.)  This  is  very  loosely  said; 
and  the  reason  given  equally  applies  to  every  general  rule ;  for  there  can  be  none , 
which  will  be  found  equally  just  in  its  application  to  all  cases.  If  every  change  of 
circumstances  is  to  change  the  rule  in  equity,  there  can  be  no  general  rule.  Every 
case  must  stand  upon  its  own  ground.  Yet  courts  of  equity  now  adhere  as  closely 
to  general  rules  as  courts  of  law.  Each  expounds  its  rules  to  meet  new  cases ;  but 
each  is  equally  reluctant  to  depart  from  them  upon  slight  inconveniences  and  mischiefs. 
See  Mitford,  Plead,  in  Eq.  p.  4,  note  (b);  1  Fonbl.  Eq.  B.  1,  ch.  1,  §  3,  note  (fe). 
'The  late  Professor  Park,  of  King's  College  (London),  has  made  some  very  acute 
remarks  on  this  whole  subject,  in  his  Introductory  Lecture  on  Equity  (1832). 


§    18,    19.]  NATURE    OF   EQUITY.  13 

suerunt  "  (i).  And  the  Pandects  directly  recognize  the  same  doctrine, 
"Est  enim  juris  civilis  species  consuetudo;  enimvero,  diutuma  con- 
suetude pro  jure  et  lege,  in  his,  quse  non  ex  scripto  descendunt 
observari,  solet,  &e.  Maxime  autem  probatur  consuetudo  ex  rebus 
judicatis  "  (k). 

§  19.  If,  indeed,  a  court  of  equity  in  England  did  possess  the  un- 
bounded jurisdiction  which  has  been  thus  generally  ascribed  to  it,  of 
correcting,  controlling,  moderating,  and  ever  superseding  the  law,  and 
of  enforcing  all  the  rights,  as  well  as  the  charities,  arising  from  natural' 
law  and  justice,  and  of  freeing  itself  from  all  regard  to  former  rules 
and  precedents,  it  would  be  the  most  gigantic  in  its  sway  and  the 
most  formidable  instrument  of  arbitrary  power  that  could  well  be- 
devised.  It  would  literally  place  the  whole  rights  and  property  of 
the  community  under  the  arbitrary  will  of  the  judge,  acting,  if  you 
please,  arbitro  boni  judicis,  and,  it  may  be,  ex  aequo  et  bono,  according 
to  his  own  notions  and  conscience,  but  still  acting  with  a  despotic 
and  sovereign  authority.  A  court  of  chancery  might  then  well  deserve 
the  spirited  rebuke  of  Selden :  "For  law  we  have  a  measure,  and 
know  what  to  trust  to.  Equity  is  according  to  the  conscience  of  himi 
that  is  chancellor;  and  as  that  is  larger,  or  narrower,  so  is  equity.. 
'Tis  all  one  as  if  they  should  make  the  standard  for  the  measure  the- 
chancellor's  foot.  What  an  uncertain  measure  would  this  be  !  One 
chancellor  has  a  long  foot;  another  a  short  foot;  a  third  an  indifferent- 
foot.  It  is  the  same  thing  with  the  chancellor's  conscience  "  (I).  And' 
notions  of  this  sort  were,  in  former  ages,  when  the  chancery  jurisdic- 
tion was  opposed  with  vehement  disapprobation  by  common  lawyers, 
very  industriously  propagated  by  the  most  learned  of  English 
antiquarians,  such  as  Spelman,  Coke,  Lambard,  and  Selden  (m).  "We 
might,  indeed,  under  such  circumstances,  adopt  the  language  of 
Mr.  Justice  Blackstone,  and  say  :  "In  short,  if  a  court  of  equity  in 
England  did  really  act,  as  many  ingenious  writers  have  supposed  it 
(from  theory)  to  do,  it  would  rise  above  all  law,  either  common  or- 
statute,  and  be  a  most  arbitrary  legislator  in  every  particular  case  "  (n). 
So  far,  however,  is  this  from  being  true,  that  one  of  the  most  common- 
maxims  upon  which  a  court  of  equity  daily  acts,  is,  that  "  equity  follows 
the  law,  and  seeks  out  and  guides  itself  by  the  analogies  of  the- 
law  "  (o). 

(i)  Cicero  de  Invent.  Lib.  2,  cap.  22.  My  attention  -was  first  called  to  these- 
passages  by  a  note  of  Lord  Eedesdale.  Mitford,  Plead,  in  Eq.  p.  4,  note  (b).  See- 
Heineccius,  De  Bdictis  Prstorum,  Lib.  1,  cap.  6,  §  13,  30. 

(k)  Pothier,  Pand.  Lib.  1,  tit.  3,  art.  6  n.  28,  29;  Dig.  Lib.  1,  tit.  3.  f.  33,  f.  34. 

{I)  Selden's  Table  Talk,  title  Equity,  cited  3  Black  Comm.  432,  note  (y). 

(m)  See  citations,  3  Black.  Comm.  433;  ibid.  54,  55,  440,  441. 

(n)  3  Black.  Comm.  4.33;  ibid.  440,  441,  442.  De  Lolme,  in  his  -work  on  the  Con- 
stitution of  England,  has  presented  a  vie-w  of  English  equity  jurisprudence,  far  more- 
exact  and  comprehensive  than  many  of  the  English  text--writers  on  the  same  subject.. 
The  -whole  chapter  (B.  1,  c.  11)  is  -well  -worthy  of  perusal. 

(o)  Cowper  v.  Cowper,  2  P.  Wms.  753. 


14  EQUITY   JURISPRUDENCE.  [CH.    I. 

§  20.  What  has  been  already  said  upon  this  subject  cannot  be  more 
fitly  concluded  than  in  the  words  of  one  of  the  ablest  judges  that 
ever  sat  in  equity.  "There  are"  (said  Lord  Eedesdale)  "certain 
principles,  on  which  courts  of  equity  act,  which  are  very  well  settled. 
The  cases  which  occur  are  various;  but  they  are  decided  on  fixed 
■principles.  Courts  of  equity  have,  in  this  respect,  no  more  dis- 
cretionary power  than  courts  of  law.  They  decide  new  cases,  as  they 
.arise,  by  the  principles  on  which  former  cases  have  been  decided; 
and  may  thus  illustrate,  or  enlarge,  the  operation  of  those  principles. 
But  the  principles  are  as  fixed  and  certain  as  the  principles  on  which 
the  courts  of  common  law  proceed  "  (p).  In  confirmation  of  these 
remarks  it  may  be  added,  that  the  courts  of  common  law  are,  in  like 
manner,  perpetually  adding  to  the  doctrines  of  the  old  jurisprudence; 
and  enlarging,  illustrating,  and  applying  the  maxims  which  were  at 
first  derived  from  very  narrow  and  often  obscure  sources.  For  instance, 
the  whole  law  of  Insurance  is  scarcely  a  century  old;  and  more  than 
half  of  its  most  important  principles  and  distinctions  have  been  created 
within  the  last  fifty  years  (g). 

§  21.  In  the  early  history  of  English  equity  jurisprudence,  there 
rmight  have  been,  and  probably  was,  much  to  justify  the  suggestion, 
that  courts  of  equity  were  bounded  by  no  certain  limits  or  rules ;  but 
they  acted  upon  principles  of  conscience  and  natural  justice,  without 
.much  restraint  of  any  sort.  And  as  the  chancellors  were,  for  many 
.ages,  almost  universally  either  ecclesiastics  or  statesmen,  neither  of 
whom  are  supposed  to  be  very  scrupulous  in  the  exercise  of  power; 
and  as  they  exercised  a  delegated  authority  from  the  Crown,  as  the 
fountain  of  administrative  justice,  whose  rights,  prerogatives,  and 
duties  on  this  subject  were  not  well  defined,  and  whose  decrees  were 
not  capable  of  being  resisted,  it  would  not  be  unnatural  that  they 
should  arrogate  to  themselves  the  general  attributes  of  royalty,  and 
interpose  in  many  cases,  which  seemed  to  them  to  require  a  remedy, 
more  wide  or  more  summary  than  was  adopted  by  the  common  courts 
of  law. 

§  22.  This  is  the  view  which  Mr.  Justice  Blackstone  seems  to  have 
taken  of  the  matter;  who  has  observed  that,  in  the  infancy  of  our 
courts  of  equity,  before  their  jurisdiction  was  settled,  the  chancellors 
themselves,  "  partly  from  their  ignorance  of  the  law  (being  frequently 
bishops  or  statesmen),  partly  from  ambition  and  lust  of  power 
(encouraged  by  the  arbitrary  principles  of  the  age  they  lived  in),  but 
principally  from  the  narrow  and  unjust  decisions  of  the  courts  of  law, 
had  arrogated  to  themselves  such  unlimited  authority  as  hath  totally 
been  disclaimed  by  their  successors,  for  now  [1765]  above  a  century 
past.     The   decrees  of  the   court  of  equity  were  then  rather  in  the 

(p)  Bond  V.  Hopkins,  1  Sch.  &  Lef.  428,  429. 
(g)  The  original  edition  was  published  in  183S. 


§    20 — 25.]  NATURE    OF   EQDITY.  15 

nature  of  awards,  formed  on  the  sudden,  pi)-o  re  natd,  with  more 
probity  of  intention  than  knowledge  of  the  subject,  founded  on  no 
settled  principles,  as  being  never  designed,  and  therefore  never  used, 
as  precedents  "  (r). 

§  23.  It  was  fortunate,  indeed,  that,  even  in  those  early  times,  the 
knowledge  which  the  ecclesiastical  chancellors  had  acquired  of  general 
equity  and  justice  from  the  civil  law,  enabled  them  to  administer 
them  with  a  more  sound  discretion  than  could  otherwise  have  been 
done.  And  from  the  moment,  when  principles  of  decision  came  to 
be  acted  upon  and  established  in  chancery,  the  Eoman  law  furnished 
abundant  principles  to  erect  a  superstructure,  at  once  solid,  con- 
venient, and  lofty,  adapted  to  human  wants,  and  enriched  by  all  the 
aids  of  human  wisdom,  experience,  and  learning.  To  say  that  later 
chancellors  have  borrowed  much  from  these  materials,  is  to  bestow 
the  highest  praise  upon  their  judgment,  their  industry,  and  their 
reverential  regard  to  their  duty.  It  would  have  been  little  to  the 
commendation  of  such  learned  minds,  that  they  had  studiously  dis- 
regarded the  maxims  of  ancient  wisdom,  or  had  neglected  to  use  them, 
from  ignorance,  from  pride,  or  from  indifference  (s). 

§  24.  Having  dwelt  thus  far  upon  the  inaccurate,  or  inadequate 
notions,  which  are  frequently  circulated,  as  to  equity  jurisprudence, 
it  may  be  thought  proper  to  give  some  more  exact  and  clear  state- 
ment of  it.  This  may  be  better  done  by  explanatory  observations, 
than  by  direct  definitions,  which  are  often  said  in  the  law  to  be 
perilous  and  unsatisfactory. 

§  25.  In  England,  equity  has  a  restrained  and  qualified  meaning. 
The  remedies  for  the  redress  of  wrongs,  and  for  the  enforcement  of 
rights,  were  distinguished  into  two  classes :  first,  those  which  were 
administered  in  courts  of  common  law ;  and  secondly,  those  which 
were  administered  in  courts  of  equity.  Rights,  which  were  recognized 
and  protected,  and  wrongs,  which  were  redressed  by  th*  former  courts, 
were  called  legal  rights  and  legal  injuries.  Eights  which  were  recog- 
nized and  protected,  and  wrongs,  which  were  redressed  by  the  latter, 
courts  only,  were  called  equitable  rights  and  equitable  injuries.  The 
former  were  said  to  be  rights  and  wrongs  at  coxnmon  law,  and  the 
remedies,  therefore,  were  remedies  at  common  law;  the  latter  were  said 
to  be  rights  and  wrongs  in  equity,  and  the  remedies,  therefore,  were 

(r)  3  Black  Comm.  433;  ibid.  440,  441. 

(s)  The  whole  of  the  late  Professor  Park's  Lecture  upon  Equity  Jurisprudence, 
delivered  in  King's  College  in  Nov.  1831,  on  this  subject,  is  well  deserving  of  a 
perusal  by  every  student.  There  is  much  freedom  and  force  in  his  observations,  and, 
if  his  life  had  been  longer  spared,  he  would  probably  have  been  a  leader  in  a  more 
masculine  and  extensive  course  of  law  studies  by  the  English  Bar.  There  are  also 
two  excellent  articles  on  the  same  subject  in  the  American  Jurist,  one  of  which,  pub- 
lished in  1829,  contains  a  most  elaborate  review  and  vindication  of  the  jurisdiction  of 
courts  of  equity,  and  the  other  in  1833,  a  forcible  exposition  of  the  prevalent  errors 
on  the  subject  (2  Amer.  Jurist,  314 ;  10  Amer.  Jurist,  227).  I  know  not  where  to  refer 
the  reader  to  pages  more  full  of  useful  comment  and  research. 


16  EQUITY   JURISPRUDENCE.  [CH.    I. 

remedies  in  equity.  Equity  jurisprudence  may,  therefore,  properly 
be  said  to  be  that  portion  of  remedial  justice,  which  was  exclusively 
administered  by  a  court  of  equity,  as  contradistinguished  from  that 
portion  of  remedial  justice,  which  was  exclusively  administered  by  a 
court  of  common  law. 

§  26.  The  distinction  between  the  former  and  the  latter  courts 
may  be  further  illustrated  by  considering  the  different  natures  of  the 
rights  they  were  designed  to  recognize  and  protect,  the  different  natures 
of  the  remedies  which  they  applied,  and  the  different  natures  of  the 
forms  and  modes  of  proceeding  which  they  adopted  to  accomplish  their 
respective  ends.  In  the  courts  of  common  law  there  were  certain  pre- 
scribed forms  of  action,  to  which  the  party  must  have  resorted  to 
furnish  him  a  remedy ;  and,  if  there  were  no  prescribed  form  to  reach 
such  a  case,  he  was  remediless;  for  they  entertained  jurisdiction  only 
of  certain  actions,  and  gave  relief  according  to  the  particular  exigency 
of  such  actions,  and  not  otherwise.  In  those  actions,  a  general  and 
unqualified  judgment  only  could  be  given,  for  the  plaintiff,  or  for  the 
defendant,  without  any  adaptation  of  it  to  particular  circumstances. 

§  27.  But  there  are  many  cases,  in  which  a  simple  judgment  for 
either  party,  without  qualifications,  or  conditions,  or  peculiar  arrange- 
ments, will  not  do  entire  justice  ex  eequo  et  bono  to  either  party. 
Some  modifications  of  the  rights  of  both  parties  may  be  required ; 
some  restraints  on  one  side,  or  on  the  other,  or  perhaps  on  both  sides ; 
some  adjustments  involving  reciprocal  obligations,  or  duties ;  some 
compensatory,  or  preliminary,  or  concurrent  proceedings  to  fix,  con- 
trol, or  equalise  rights ;  some  qualifications  or  conditions,  present  or 
future,  temporary  or  permanent,  to  be  annexed  to  the  exercise  of 
rights,  or  the  redress  of  injuries.  In  all  these  cases  courts  of  common 
law  could  not  give  the  desired  relief.  They  had  no  forms  of  remedy 
adapted  to  the  objects.  They  could  entertain  suits  only  in  a  prescribed 
form,  and  they  could  give  a  general  judgment  only  in  the  prescribed 
form.  From  their  very  character  and  organisation  they  were  incapable 
.of  the  remedy,  which  the  mutual  rights  and  relative  situations  of  the 
parties,  under  the  circumstances,  positively  required. 

§  28.  But  courts  of  equity  were  not  so  restrained.  Although  they 
had  prescribed  forms  of  proceedings,  the  latter  were  flexible,  and  might 
be  suited  to  the  different  postures  of  cases.  They  might  adjust  their 
decrees,  so  as  to  meet  most,  if  not  all,  of  these  exigencies;  and  they 
might  vary,  qualify,  restrain,  and  model  the  remedy,  so  as  to  suit  it  to 
mutual  and  adverse  claims,  controlling  equities,  and  the  real  and 
substantial  rights  of  all  the  parties.  Nay,  more :  they  could  bring 
before  them  all  parties  interested  in  the  subject-matter,  and  adjust 
the  rights  of  all,  however  numerous;  whereas,  courts  of  common  law 
were  compelled  to  limit  their  inquiry  to  the  very  parties  in  the  litiga- 
tion before  them,  although  other  persons  might  have  the  deepest 
interest  in  the  event  of  the  suit.     So  that  one  of  the  most  striking 


§    29 31.]  NATURE    OF   EQUITY.  17 

and  distinctive  features  of  courts  of  equity  was,  that  they  could  adapt 
their  decrees  to  all  the  varieties  of  circumstances,  which  might  arise, 
and  adjust  them  to  all  the  pecuhar  rights  of  all  the  parties  in  interest; 
whereas  courts  of  common  law  (as  we  have  already  seen)  were  bound 
down  to  a  fixed  and  invariable  form  of  judgment  in  general  terms, 
altogether  absolute,  for  the  plaintiff,  or  for  the  defendant  (t). 

§  29.  Another  peculiarity  of  courts  of  equity  was,  that  they  could 
administer  remedies  for  rights,  which  rights,  courts  of  common  law 
did  not  recognize  at  all ;  or,  if  they  did  recognize  them,  they  left  them 
wholly  to  the  conscience  and  good-will  of  the  parties.  Thus,  what 
are  technically  called  Trusts,  that  is,  estates  vested  in  persons  upon 
particular  trusts  and  confidences,  were  wholly  without  any  cognizance 
at  the  common  law;  and  the  abuses  of  such  trusts  and  confidences 
were  beyond  the  reach  of  any  legal  process.  But  they  are  cognizable 
in  courts  of  equity;  and  hence  they  are  called  equitable  estates;  and 
an  ample  remedy  is  there  given  in  favour  of  the  cestuis  que  trust  (the 
parties  beneficially  interested)  for  all  wrongs  and  injuries,  whether 
arising  from  negligence,  or  positive  misconduct  (m).  There  are  also 
many  cases  (as  we  shall  presently  see)  of  losses  and  injuries  by 
mistake,  accident,  and  fraud ;  many  cases  of  penalties  and  forfeitures ; 
many  cases  of  impending  irreparable  injuries,  or  meditated  mischiefs; 
and  many  cases  of  oppressive  proceedings,  undue  advantages  and 
impositions,  betrayals  of  confidence,  and  unconscionable  bargains,  in 
all  of  which  courts  will  interfere  and  grant  redress;  but  which  the 
common  law  took  no  notice  of,  or  silently  disregarded  (x). 

§  30.  Again:  the  remedies  in  courts  of  equity  were  often  very 
different,  in  their  nature,  mode,  and  degree,  from  those  of  courts  of 
common  law,  even  when  each  had  a  jurisdiction  over  the  same 
subject-matter.  Thus,  a  court  of  equity,  if  a  contract  is  broken,  would 
often  compel  the  party  specifically  to  perform  the  contract;  whereas, 
courts  of  law  could  only  give  damages  for  the  breach  of  it.  So,  courts 
of  equity  would  interfere  by  way  of  injunction  to  prevent  wrongs; 
whereas,  courts  of  common  law  could  grant  redress  only,  when  the 
wrong  was  done. 

§  31.  The  modes  of  seeking  and  granting  relief  in  equity  were  also 
different  from  those  of  courts  of  common  law.  The  latter  proceed  to 
the  trial  of  contested  facts  by  means  of  a  jury;  and  the  evidence  till 
lately  was  drawn,  not  from  the  parties,  but  from  third  persons    who 

(t)  1  Wooddes.  Lect.  vii.  pp.  203  to  206;  3  Black.  Comm.  438.  Much  of  this 
paragraph  has  been  abstracted  from  Dr.  Lieber's  Encyclopedia  Americana,  article 
Equity.  The  late  Professor  Park,  of  King's  College,  London,  in  his  Introductory 
Lecture  on  Equity  (1831,  p.  15),  has  said,  "  The  editors  of  the  Encyclopedia  Americana 
have  stated  the  real  case,  with  regard  to  what  we  call  courts  of  equity,  much  more 
accurately  than  I  can  find  it  stated  in  any  English  Law  Books";  and  he  thus 
admits  the  propriety  of  the  exposition  contained  in  the  text. 

(u)  3,Black.  Comm.  439. 

(x)  Ibid.  484,  435,  438,  439. 

E.J.  2 


18  EQUITY   JUEISPEUDENCE.  [CH.    I. 

were  disinterested  witnesses.  But  courts  of  equity  tried  causes 
without  a  jury;  and  they  addressed  themselves  to  the  conscience  of 
the  defendant,  and  required  him  to  answer  upon  his  oath  the  matters 
of  fact  stated  in  the  bill,  if  they  were  within  his-  knowledge;  and  he 
was  compellable  to  give  a  full  account  of  all  such  facts,  with  all  their 
circumstances,  without  evasion,  or  equivocation;  and  the  testimony 
of  other  witnesses  also  might  be  taken  to  confirm,  or  to  refute,  the 
facts  so  alleged.  Indeed,  every  bill  in  equity  may  be  said  to  have 
been,  in  some  sense,  a  bill  of  discovery,  since  it  asked  for  the  personal 
oath  of  the  defendant,  to  purge  himself  in  regard  to  the  transactions 
stated  in  the  bill.  It  may  readily  be  perceived,  how  very  important 
this  process  of  discovery  may  be,  when  we  consider  how  great  the 
mass  of  human  transactions  is,  in  which  there  are  no  other  witnesses, 
or  persons,  having  knowledge  thereof,  except  the  parties  themselves. 

§  32.  Mr.  Justice  Blackstone  has,  in  a  few  words,  given  an  outline 
of  some  of  the  more  important  powers  and  peculiar  duties  of  courts 
of  equity.  He  says,  that  they  are  established  "  to  detect  latent 
frauds,  and  concealments,  which  the  process  of  courts  of  law  is  not 
adapted  to  reach ;  to  enforce  the  execution  of  such  matters  of  trust 
and  confidence,  as  are  binding  in  conscience,  though  not  cognizable 
in  a  court  of  law ;  to  deliver  from  such  dangers  as  are  owing  to  mis- 
fortune or  oversight;  and  to  give  a  more  specific  relief,  and  more 
adapted  to  the  circumstances  of  the  case,  than  can  always  be  obtained 
by  the  generality  of  the  rules  of  the  positive  or  common  law  "  (y).  But 
the  general  account  of  Lord  Eedesdale  (which  he  admits,  however, 
to  be  imperfect,  and  in  some  respects  inaccurate),  is  far  more  satis- 
factory, as  a  definite  enumeration.  "  The  jurisdiction  of  a  court  of 
equity"  (says  he)  (z),  "  when  it  assumes  a  power  of  decision,  is  to  be 
exercised, '  (1)  where  the  principles  of  law,  by  which  the  ordinary 
courts  are  guided,  give  a  right,  but  the  powers  of  those  courts  are 
not  sufficient  to  afford  a'  complete  remedy,  or  their  modes  of  pro- 
ceeding are  inadequate  to  the  purpose;  (2)  where  the  courts  of 
ordinary  jurisdiction  are  made  instruments  of  injustice ;  (3)  where 
the  principles  of  law,  by  which  the  ordinary  courts  are  guided,  give 
no  right,  but  upon  the  principles  of  universal  justice,  the  interference 
of  the  judicial  power  is  necessary  to  prevent  a  wrong,  and  the  positive 
law  is  silent.  And  it  may  also  be  collected,  that  courts  of  equity, 
without  deciding  upon  the  rights  of  the  parties,  administer  to  the 
ends  of  justice  by  assuming  a  jurisdiction;  (4)  to  remove  impedi- 
ments to  the  fair  decision  of  a  question  in  other  courts;  (5)  to 
provide   for  the   safety  of  property  in  dispute,   pending  a  litigation, 

(i;)  1  Black.  Comm.  92. 

(z)  Mitford,  PI.  Eq.  by  Jeremy,  pp.  Ill,  112.  See  also  ibid.  pp.  4,  5.  Dr.  Dane, 
in  his  Abridgment  and  Digest,  ch.  1,  art.  7,  §  33  to  51  (1  Dane,  Abrid.  101  to  197), 
has  given  a  summary  of  the  differences  between  equity  jurisdiction  and  legal  juris- 
diction in  regard  to  contracts,  which  may  be  read  with  utility. 


§    32,    33.]  NATURE    OF    EQUITY.  19 

and  to  preserve  property  in  danger  of  being  dissipated  or  destroyed 
by  those  to  whose  care  it  is  by  law  entrusted,  or  by  persons  having 
immediate  but  partial  interest;  (6)  to  restrain  the  assertion  of  doubtful 
rights  in  a  manner  productive  of  irreparable  damage;  (7)  to  prevent 
injury  to  a  third  person  by  the  doubtful  title  of  others;  and  (8)  to 
put  a  bound  to  vexatious  and  oppressive  litigation,  an,d  to  prevent 
multiplicity  of  suits.  And  further,  that  courts  of  equity,  without 
pronouncing  any  judgment,  which  may  affect  the  rights  of  parties, 
extend  their  jurisdiction;  (9)  to  compel  a  discovery,  or  obtain  evidence, 
which  may  assist  the  decision  of  other  courts;  and  (10)  to  preserve 
testimony,  when  in  danger  of  being  lost,  before  the  matter,  to  which 
it  relates,  can  be  made  the  subject  of  judicial  investigation." 

§  33.  Perhaps  the  most  general,  if  not  the  most  precise,  descrip- 
tion of  a  court  of.  equity,  .is,  that  it  had  jurisdiction  in  cases  of  rights, 
recognised  and  protected  by  the  municipal  jurisprudence,  where  a  plain, 
adequate,  and  complete  remedy  could  be  not  had  in  the  courts  of 
common  law  (a).  The  remedy  must  have  been  plain ;  for  if  it  be  doubt- 
ful and  obscure  at  law,  equity  would  assert  a  jurisdiction  (fa).  It  must 
have  been  adequate ;  for,  if  at  law  it  fell  short  of  what  the  party  was 
entitled  to,  that  founded  a  jurisdiction  in  equity  (c).  And  it  must  have 
been  complete;  that  is,  it  must  have  attained  the  full  end  and  justice 
of  the  case.  It  must  have  reached  the  whole  mischief,  and  secured  the 
whole  right  of  the  party  in  a  perfect  manner,  at  the  present  time,  and 
in  future ;  otherwise,  equity  would  interfere  and  give  such  relief  and  aid 
as  the  exigency  of  the  particular  case  might  require  (d).     The  jurisdic- 

(a)  Cooper,  Eq.  PI.  128,  139;  Mitford,  PI.  Eq.  by  Jeremy,  112,  123. 

(b)  Southampton  Dock  Co.  v.  Southampton  Board,  L.  E.  11  Eq.  254. 

(c)  In  the  early  days  of  English  jurisprudence,  subjects  could  sue  each  other 
in  the  county  and  hundred  courts  only.  The  King's  Bench,  Common  Pleas,  and 
Exchequer  Courts  were  exclusively  employed  in  the  king's  business  with  his  subjects. 
The  king  also  administered  many  matters  of  justice  between  his  subjects  in  his 
council.  His  chancellor  was  the  secretary  of  the  council,  and  to  him  the  petitions 
of  the  subject  for  redress  came  in  the  first  instance.  The  chancellor  examined  the 
petitions,  and  referred  the  matter  of  the  petitions  to  the  King's  Bench,  Common  Pleas, 
or  Exchequer,  according  to  the  nature  of  the  business.  In  cases  where  no  proper 
redress  could  be  had  in  any  of  those  courts,  the  chancellor  retained  the  petition  in  his 
own  hands,  and  the  king,  or  the  chancellor,  gave  such  relief  as  was  judged  proper. 
Hence  arose  the  custom  of  inserting,  in  petitions  to  the  king  or  his  chancellor,  the 
allegation  that  the  petitioner  had  no  complete  and  adequate  remedy  in  the  ordinary 
courts  of  law.  See  Bispham,  Prin.  of  Eq.  pp.  6-9.  Thus  the  inadequacy  and 
incompleteness  of  all  legal  remedy  underlie  the  whole  system  of  equity  jurisprudence. 
But  gradually  the  jurisdiction  of  the  chancellor  in  giving  relief  where  there  was  no 
adequate  remedy  at  law  became  settled;  and  there  grew  up  certain  great  heads  of 
equity  jurisdiction,  and  courts  of  equity  took  jurisdiction  rather  because  they  had 
jurisdiction  in  certain  matters,  than  because  there  was  no  adequate  and  complete 
remedy  at  law  in  the  particular  case.  Thus  the  jurisdiction  of  a  court  of  equity  at 
the  present  day  in  England  is  determined,  not  by  the  question  whether  there  is  an 
adequate  remedy  at  law,  but  whether  it  has  been,  the  practice  of  the  chancellor  to 
take  jurisdiction  in  similar  matters. 

(d)  See  Dr.  Lieber's  Encyc.   Americana,   art.   Equity;  Mitford,  Eq.   Plead,   by 
Jeremy,  111,  112,  117,  123. 


20  EQUITY   JURISPHUDBNCE.  [CH.    I. 

tion  of  a  court  of  equity  was,  therefore,  sometimes  concurrent  with 
the  jurisdiction  of  a  court  of  law;  it  was  sometimes  exclusive  of  it;  and 
it  was  sometimes  auxiliary  to  it. 

§  34.  The  author  in  the  preceding  paragraphs  had  led  up  to  the 
discussion  of  the  jurisdiction  exercised  by  the  Lord  Chancellor,  and  in 
the  concluding  paragraphs  expressed  his  approval  of  the  divided  juris- 
dictions of  the  common  law  courts  and  the  court  of  chancery.  There 
had  bjsen  small  attempts  at  fusion  into  one  court  which  should  give 
to  suitors  the  actual  relief  to  which  they  were  entitled  according  to 
the  facts  proved,  either  by  cumulation  of  remedies,  or  by  allowing 
matters  to  be  raised  by  way  of  defence,  or  by  awarding  one  of  two 
alternative  measures  of  relief.  Thus  the  8  &  9  Will.  III.,  c.  11  (e); 
4  &  5  Anne  c.  3  (/);  and  7  Geo.  II.,  c.  20,  empowered  the  common  law 
courts,  in  proceedings  on  bonds,  to  restrict  the  rights  of  the  plaintiff 
within  the  limits  laid  down  in  courts  of  equity.  Conversely  the  court 
of  chancery  was  empowered  by  the  Court  of  Chancery  Amendment 
Act,  1858  (21  &  22  Vict.  c.  27)  to  award  damages  in  cases  where  it 
exercised  concurrent  jurisdiction,  instead  of  dismissing  the  bill,  without 
prejudice  to  the  right  of  the  plaintiff  to  maintain  proceedings  at  law  (g). 
By  the  Judicature  Act,  1873  (36  &  87  Vict.  c.  66)  one  court  adminis- 
tering law  and  equity  was  constituted.  Still  a  clear  understanding  of 
the  principles  upon  which  the  courts  of  chancery  or  of  the  common 
law  acted  is  essential,  for  as  has  been  said,  the  statute  is  not  concerned 
with  rights  but  with  procedure.  Accordingly,  where  the  plaintiff  is 
entitled  to  one  of  two  alternative  remedies,  the  relief  granted  will  be 
that  to  which  he  would  have  been  entitled  upon  the  facts  proved,  and 
may  in  the  circumstances  have  been  lost  (h).  It  may  be  added  that 
the  author  limited  his  treatise  to  equity  as  administered  in  the  court 
of  chancery.  There  had  been  an  equitable  jurisdiction  exercised  by 
the  court  of  exchequer,  a  jurisdiction  transferred  to  the  second  Vice- 
Chancellor  by  statute  5  Vict.  c.  5. 

(e)  Tuther  v.  Caralampi,  21  Q.  B.  D.  414. 
{/)  Gerard  v.  Clowes,  [1892]  2  Q.  B.  1. 
(3)  Ferguson  v.  Wilson,  L.  E.  2  Ch.  77. 

{h)  Tamplin  v.  James,  15  Ch.  D.  215;  Olley  v.  Fisher,  34  Ch.  D.  367;  Lavery  v 
Pursell,  39  Ch.  D.  608;  General  Accident  Assurance  Co.  v.  Noel,  [1902]  1  K.  B.  377, 


§    34 — 39.]  ORIGIN    AND    HISTORY.  21 


CHAPTER    II. 

THE  ORIGIN   AND   HISTORY   OF   EQUITY  JURISPRUDENCE. 

§  38.  Having  thus  ascertained  what  is  the  true  nature  and  character 
of  Equity  Jurisprudence,  as  it  is  administered  in  countries  governed 
by  the  common  law,  it  seemed  proper,  before  proceeding  to  the  con- 
sideration of  the  particulars  of  that  jurisdiction,  to  take  a  brief  review 
of  its  origin  and  progress.  It  is  not  intended  here  to  epeak  of  the 
common  law  jurisdiction  of  the  Court  of  Chancery,  'or  of  any  of  its 
specially  delegated  jurisdiction  in  exercising  the  prerogatives  of  the 
Crown,  as  in  cases  of  infancy  and  lunacy;  or  of  its  statutable  jurisdic- 
tion in  cases  of  bankruptcy  (a).  The  inquiry  will  mainly  relate  to  its 
equitable,  or,  as  it  is  sometimes  called,  its  extiraordinary,  jurisdic- 
tion (b). 

§  39.  The  origin  of  the  Court  of  Chancery  is  involved  in  the  same 
obscurity,  which  attends  the  investigation  of  many  other  questions,  of 
high  antiquity,  relative  to  the  common  law  (c).  The  administration  of 
justice  in  England  was  originally  confided  to  the  Aula-  Regis,  or  great 
Court  or  Council  of  the  King,  as  the  Supreme  Court  of  Judicature, 
which,  in  those  early  times,  undoubtedly  administered  equal  justice, 
according  to  the  rules  of  both  law  and  equity,  or  of  either,  as  the 
case  might  chance  to  require  (d).  When  that  court  was  broken  into 
pieces,  and  its  principal  jurisdiction  distributed  among  various  courts, 
the  Common  Pleas,  the  King's  Bench,  and  the  Exchequer,  each 
received  a  certain  portion,  and  the  Court  of  Chancery  also  obtained 
a  portion  (e).  But,  at  that  period,  the  idea  of  a  court  of  equity,  as 
contradistinguished  from  a  court  of  law,  does  not  seem  to  have  sub- 
sisted in  the  original  plan  of  partition,    or    to    have    been    in    the 

(a)  See  Com.  Dig.  Chancery,  C.  1;  1  Mad.  Ch.  Pr.  262;  2  Mad.  Ch.  Pr.  447;  ibid. 
565;  3  Black.  Comm.  426,  427,  428. 

(6)  3  Black.  Comm.  50;  Com.  Dig.  Chancery,  C.  2;  4  Inst.  79;  2  Inst.  552. 

(c)  Mitford,  PL  Equity,  1;  Com.  Dig.  Chancery,  A.  1;  4  Inst.  79;  1  Wooddes. 
Lect.  vi. 

(d)  3  Black.  Comm.  50;  1  Beeves,  Hist.  62,  63. 

(e)  3  Black.  Comm.  50;  Com.  Dig.  Chancery,  A.  1,  2,  3;  1  Collect,  jurid.  27  to 
30;  Parke,  Hist.  Chan.  16,  17,  28,  56;  1  Eq.  Abridg.  129;  Courts,  B.  note  (a);  1 
Wooddes.  Lect.  vi.  pp.  174,  175;  Gilb.  For.  Roman.  14;  1  Reeves,  Hist,  59,  60,  63; 
Bac.  Abridg.  Court  of  Chancery,  C. 


22  EQUITY   JUEISPRUDENCE.  [CH.    II. 

contemplation  of  the  sages  of  the  day  (/).  Certain  it  is,  that  among 
the  earliest  writers  of  the  common  law,  such  as  Bracton,  Glanville, 
Britton,  and  Fleta,  there  is  not  a  syllable  to  be  found  relating  to  the 
equitable  jurisdiction  of  the  Court  of  Chancery  {g). 

§  39a.  The  author,  in  subsequent  paragraphs,  discussed  at  length 
the  conflicting  views  of  which  Lord  Coke 's  is  perhaps  the  most  virulent 
and  the  most  inaccurate  (h),  respecting  the  antiquity  of  the  jurisdic- 
tion. The  Statute'  of  Westminster  the  Second  (13  Ed.  1,  c.  24)  had 
imposed  upon  the  clerks  in  chancery  the  duty  of  framing  writs  to  meet 
cases  to  which  the  older  forms  were  inapplicable.  It  was  one  thing  to 
frame  the  writs,  but  a  totally  different  state  of  affairs  arose  when  the 
actions  instituted  by  these  writs  came  before  judges  who  were  not 
bound  to  recognise  the  validity  of  the  process.  At  some  date  the 
political  head  of  the  clerks  in  chancery  intervened,  sometimes  with 
the  approval  of  the  common  law  judges  (i),  sometimes  in  antagonism 
to  them  (fc).  Lord  Coke  asserted  that  the  jurisdiction  arose  in  the  time 
of  Henry  IV.,  and  was  concerned  with  feoffments  to  uses  (I),  or  what 
would  now  be  cabled  the  administration  of  trusts.  But  in  41  El.,  Lord 
EUesmere  produced  a  precedent  in  the  time  of  Eichard  II.,  of  a 
"decree  en  chancery  per  I'advice  des  judges,"  granting  an  injunction 
to  restrain  waste  {m).  And  there  seems  no  reason  to  doubt  that  a 
decree  for  the  specific  performance  of  an  agreement  was  granted  in 
the  same  reign  (n). 

§  46.  If  confirmation  were  needed  to  establish  the  fact  that  the 
jurisdiction  of  chancery  was  established,  and  in  full  operation  during 
the  reign  of  Eichard  II.,  it  is  to  be  found  in  the  recitals  contained  in 
the  Eemonstrances,  and  other  proceedings  of  Parliament.  At  this 
period  the  extensive  use  or  abuse  of  the  powers  of  chancery  had  become 
an  object  of  jealousy  with  Parliament;  and  various  efforts  were  made 
to  restrain  and  limit  its  authority.  But  the  Crown  steadily  supported 
it  (o).  And  the  invention  of  the  writ  of  subpoena  by  John  Waltham, 
Bishop  of  Salisbury,  who  was  Keeper  of  the  Eolls,  about  the  5th  of 
Eichard  II.,  gave  great  efficiency,  if  not  expansion,  to  the  jurisdic- 
tion (p).  In  the  13th  of  Eichard  II.,  the  Commons  prayed,  that 
no  party  might  be  required  to  answer  before  the  chancellor,  or  the 
council  of  the  king,  for  any  matter  where  a  remedy  is  given  by  the 

(/)  3  Black  Comm.  50;  The  Legal  Judic.  in  Chanc.  stated  (1727),  ch.  2,  p.  24. 

(g)  3  Black.  Comm.  50;  Parke,  Hist.  Chan.  25;  4  Inst.  82;  1  Eeeves,  Hist.  61; 
2  Eeeves,  Hist.  250,  261. 

(h)  2  Inst.  552. 

(t)  Anon.  F.  Moo.  544,  pi.  748. 

(k)  Eoper's  Life  of  Sir  T.  More,  p.  25,  ed.  T.  Hearne. 

(l)  2  Inst.  552. 

(m)  Anon.  P.  Moo.  544,  pi.  748. 

(n)  Fry,  Spec.  Perfce.   §  34. 

(o)  3  Parke,  Hist.  Chan.  89  to  44. 

(p)  3  Eeeves,  Hist.  192  tb  194;  id.  274,  379,  380,  381;  3  Black.  Comm.  52;  Bac. 
Abr.  Court  of  Chancery,  C. 


§  39a-. — 47.]  ORIGIN  and  history.  .  23 

coininon  law,  unless  it  be  by  writ  of  scire  facias  in  the  county  where 
it  is  found,  by  the  common  law.  To  which  the  king  answered,  that 
he  would  preserve  his  royalty,  as  his  progenitors  had  done  before 
him  (g).  And  the  only  redress  granted  was  by  stat.  17  Eich.  II.  ch.  6, 
by  which  it  was  enacted,  that  the  chancellor  should  have  power  to 
award  damages  to  the  defendant,  in  case  the  suggestions  of  the  bill 
were  untrue,  according  to  his  discretion  (r).  The  struggles  upon  this 
subject  were  maintained  in  the  subsequent  reigns  of  Henry  IV.  and  V. 
But  the  Crown  resolutely  resisted  all  appeals  against  the  jurisdiction; 
and  finally,  in  the  time  of  Edward  IV.,  the  process  by  bill  and 
subpoena  had  become  the  daily  practice  of  the  court  (s). 

§  47.  Considerable  new  light  has  been  thrown  upon  the  subject  of 
the  origin  and  antiquity  of  the  equitable  jurisdiction  of  the  Court  of 
Chancery,  by  the  recent  publication  of  the  labours  of  the  Commis- 
sioners on  the  Public  Eecords.  Until  that  period,  the  notion  was  very 
common  (which  was  promulgated  by  Lord  Ellesmere)  that  there  were 
no  petitions  of  the  chancery  remaining  in  the  office  of  record,  before 
the  15th  year  of  the  reign  of  Henry  VI.  But  it  now  appears,  that 
many  hundreds  have  been  lately  found  among  the  records  of  the  Tower 
for  nearly  fifty  years  antecedent  to  the  period  mentioned  by  Lord 
Ellesmere,  and  commencing  about  the  time  of  the  passage  of  the 
statute  of  17  Rich.  II.  ch.  6  (<).  But  there  is  much  reason  to  believe, 
that,  upon  suitable  researches,  many  petitions  or  bills,  addressed  to 
the  chancellor,  will  be  found  of  a  similar  character  during  the  reigns 
of  Edward  I.,  Edward  II.,  Edward  III.  (u). 

(g)  Parke,  Hist.  Chan.  41 ;  4  Inst.  82. 

(r)  Parke,  Hist.  Chan.  41,  42;  3  Black.  Comm.  52;  4  Inst.  82,  83;  2  Eeeves, 
Hist.  194. 

(s)  3  Black.  Comm.  53;  Parkes,  Hist.  Chan.  45  to  57 ;  3  Eeeves,  Hist.  198,  194, 
274,  379,  380. 

(t)  1  Cooper,  Pub.  Eec.  355.  I  extract  this  statement  from  the  preface  to  the 
Calendars  of  the  Proceedings  in  Chancery,  &o.,  published  by  the  Eecord  Commis- 
sioners in  1827.  That  preface  is  signed  by- Mr.  Justice  Bayley,  sub-commissioner,  but 
was  in  fact  drawn  up  by  Mr.  Lysons,  more  than  ten  years  before.  Mr.  Cooper,  in  his 
very  valuable  account  of  the  Public  Eecords,  has  published  this  preface  verbatim; 
and  has  also  extracted  a  letter  of  Mr.  Lysons,  written  on  the  same  subject  in  1816. 
The  preface  and  letter  seem  almost  identical  in  language.  1  Cooper,  Pub.  Reo.  ch.  18, 
p.  354;  id.  384,  note  (b) ;  id.  455  to  458.  In  the  English  Quarterly  Jurist  for 
January  1828  there  will  be  found,  in  a  review  of  these  Calendars,  a  very  succinct 
but  interesting  account  of  the  contents  of  the  early  Chancery  Cases,  printed  by  the 
Eecord  Commissioners. 

(«)  Mr.  Cooper  says  that  he  "  has  made  some  inquiries,  which  induce  him  to 
think  that  there  still  exist  among  the  records  at  the  Tower  many  petitions,  or  bills, 
addressed  to  the  chancellor,  during  the  reigns  of  Edw.  I.,  Edw.  II.,  and  Edw.  III., 
similar  to  those  addressed  to  that  judge  during  the  reign  of  Eichard  II.,  selections 
from  which  have  been  printed.  Upon  a  very  slight  research,  several  documents  of 
this  description  are  stated  to  have  been  discovered;  but  only  one  of  them  has  been 
seen  by  the  compiler.  It  is  dated  the  38th  year  of  Edward  III."  1  Cooper,  Pub. 
Eec.  Addenda,  pp.  454,  455.  Mr.  Barton  says  that,  so  early  as  the  reign  of  Edward  I., 
the  chancellor  began  to  exercise  an  original  and  independent  jurisdiction,  as  a  court 
of  equity,  in  contradistinction  to  a  court  of  law.     Barton  on  Eq.  Pr.  Introd.  p.  7. 


24  EQUITY  JURISPRUDENCE.  [CH.    II. 

§  48.  From  the  proceedings,  which  have  been  published  by  the 
Eecord  Commissioners,  it  appears  that  the  chief  business  of  the  Court 
of  Chancery  in  those  early  times  did  not  arise  from  the  introduction 
of  uses  of  land,  according  to  the  opinion  of  most  writers  on  the  subject. 
Very  few  instances  of  applications  to  the  chancellor  on  such  grounds 
occur  among  the  proceedings  of  the  chancery  during  the  first  four  or 
five  reigns  after  the  equitable  jurisdiction  of  the  court  seems  to  have 
been  fully  established.  Most  of  these  ancient  petitions  appear  to  have 
been  presented  to  consequence  of  assaults,  and  trespasses,  and  a  variety 
of  outrages,  which  were  cognizable  at  common  law ;  but  for  which  the 
party  complaining  was  unable  to  obtain  redress,  in  consequence  of  the 
maintenance  and  protection  afforded  to  his  adversary  by  some  power- 
ful baron,  or  by  the  sheriff,  or  by  some  officer  of  the  county  in  which 
they  occurred  (x). 

§  49.  If  this  be  a  true  account  of  the  earliest  known  exercises  of 
equitable  jurisdiction,  it  establishes  the  point  that  it  was  principally 
applied  to  remedy  defects  in  the  common- law  proceedings;  and, 
therefore,  that  equity  jurisdiction  was  entertained  upon  the  same 
ground  which  constituted  the  principal  reason  of  its  interference ; 
namely,  that  a  wrong  was  done,  for  which  there  was  no  plain,  adequate, 
and  complete  remedy  in  the  courts  of  common  law  (y).  And  in  this 
way  great  strength  is  added  to  the  opiaions  of  Lord  Hale  and  Lord 
Hardwicke,  that  its  jurisdiction  was  in  reality  the  residuum  of  that  of 
the  Commune  Concilium  or  Aula  Regis,  not  conferred  on  other  courts, 
and  necessarily  exercisable  by  the  Crown,  as  a  part  of  its  duty  and 
prerogative  to  administer  justice  and  equity  (a).  The  introduction  of 
uses  or  trusts  at  a  later  period  may  have  given  new  activity  and 
extended  operation  to  the  jurisdiction  of  the  court;  but  it  did  not 
found  it.  The  redress  given  by  the  chancellor  in  such  cases  was 
merely  a  new  application  of  the  old  principles  of  the  court;  since  there 
was  no  remedy  at  law  to  enforce  the  observance  of  such  uses  or 
trusts  (a). 

(x)  This  passage  is  a  literal  transcript  from  the  preface  to  the  Calendars  in 
Chancery ;  and  it  is  fully  borne  out  by  the  examples  of  those  bills  and  petitions 
given  at  large  in  the  same  work.  Mr.  Cooper,  in  his  own  work  on  the  Public  Eecords, 
has  given  an  abstract,  or  marginal  note,  of  all  the  examples  thus  given,  from  the 
reign  of  Richard  II.  to  the  reign  of  Richard  III.,  amounting  in  number  to  more 
than  one  hundred.  1  Cooper,  Pub.  Rec.  359,  373;  id.  377  to  385.  As  we  proceed 
from  the  reign  of  Richard  II.  and  advance  to  modem  times,  the  cases  become  of  a 
more  mixed  character,  and  approach  to  those  now  entertained  in  chancery. 

iy)  See  Treatise  on  Subpoena,  ch.  2;  Harg.  Tjaw  Tracts,  pp.  333,  334. 

(z)  See  Eunomus,  Dial.  3,  §  60;  1  Eq.  Abrid.  Courts,  B.  (o) ;  Parkes,  Hist. 
Chan.  App.  pp.  502,  603. 

(a)  See  3  Black.  Comm.  52;  3  Reeves,  Hist.  379,  381;  Eunomus,  Dial.  3,  §  60; 
Parke,  Hist.  Chan.  28  to  31.  The  view  which  is  here  taken  of  the  subject  is  con- 
firmed by  the  remarks  of  the  commissioners  under  the  Chancery  Commission  in  the 
50th  George  III.,  whose  report  was  afterwards  published  by  parliament  in  1826. 
The  passage  to  which  allusion  is  made  is  as  follows  :  "  The  proceedings  in  the 
courts  of  common  law  are  simple,  and  generally  founded  in  certain  writs  of  great 


§    48 51.]  ORIGIN    AND    HISTORY.  25 

§  50.  From  this  slight  review  of  the  origin  and  progress  of  equitable 
jurisdiction  in  England,  it  cannot  escape  observation  how  naturally  it 
grew  up,  in  the  same  manner,  and  under  the  same  circumstances,  as 
the  equitable  jurisdiction  of  the  Praetor  at  Eome.  Each  of  them  arose 
from  the  necessity  of  the  thing  in  the  actual  administration  of  justice, 
and  from  the  deficiencies  of  the  positive  law  (the  lex  scripia),  or  from 
the  inadequacy  of  the  remedies  in  the  prescribed  forms  to  meet  the 
full  exigency  of  the  particular  case.  It  was  not  an  usurpation  for  the 
purpose,  of  acquiring  and  exercising  power ;  but  a  beneficial  inter- 
position, to  correct  gross  injustice,  and  to  redress  aggravated  and 
intolerable  grievances. 

§  51.  But,  be  the  origin  of  the  equity  jurisdiction  of  the  Court  of 
Chancery  what  it  may,  from  the  time  of  the  reign  of  Henry  VI.  it 
constantly  grew  in  importance  (5) ;  and,  in  the  reign  of  Henry  VIII.  it 
expanded  into  a  broad  and  almost  boundless  jurisdiction  under  the 
fostering  care  and  ambitious  wisdom  and  love  of  power  of  Cardinal 
Wolsey  (c).  Yet  (Mr.  Eeeves  observes),  after  all,  notwithstanding  the 
complaints  of  the  cardinal's  administration  of  justice,  he  has  the  repu- 
tation of  having  acted  with  great  ability  in  the  office  of  chancellor, 
which  lay  heavier  upon  him  than  it  had  upon  any  of  his  predecessors 
owing  to  the  too  great  care  with  which  he  entertained  suits,  and  the 
extraordinary  influx  of  business,  which  might  be  attributed  to  other 
causes  (d).  Sir  Thomas  More,  the  successor  to  the  cardinal,  took  a 
more  sober  and  limited  view  of  equity  jurisprudence,  and  gave  public 

antiquity,  conceived  in  prescribed  forms.  This  adlierence  to  prescribed  forms  has 
been  considered  as  important  to  the  due  administration  of  justice  in  common  cases. 
But,  in  progress  of  time,  cases  arose  in  which  full  justice  could  not  be  done  in 
the  courts  of  common  law,  according  to  the  practice  then  prevailing.  And,  for 
the  purpose  of  obtaining  an  adequate  remedy,  in  such  oases,  resort  was  had  to 
the  extraordinary  jurisdiction  of  the  courts  of  equity,  which  alone  had  the  power  oi 
examining  the  party  on  oath,  and  thereby  acting  through  the  medium  of  his  con- 
science, and  of  procuring  the  evidence  of  persons  not  amenable  to  the  jurisdiction 
of  the  courts  of  common  law,  and  whose  evidence  therefore  it  was  in  many  cases, 
impossible  to  obtain  without  the  assistance  of  a  court  of  equity.  The  application  to 
this  extraordinary  jurisdiction,  instead  of  being  in  the  form  of  a  writ,  prescribed  by 
settled  law,  seems  always  to  have  been  in  the  form  of  a  petition  of  the  party  or 
parties  aggrieved,  stating  the  grievance,  the  defect  of  remedy  by  proceedings  in  the 
courts  of  common  law,  and  the  remedy,  which,  it  was  conceived,  ought  to  be 
administered.  This  mode  of  proceeding  unavoidably  left  every  complaining  party 
to  state  his  case,  according  to  the  particular  circumstances,  always  asserting  that  the 
party  was  without  adequate  remedy  at  the  common  law." 

(b)  Parke,  Hist.  Chan.  55,  56;  3  Reeves,  Hist.  379  to  382. 

(c)  4  Eeeves,  Hist.  368,  369;  Parke,  Hist.  Chan.  61,  62;  i  Inst.  91,  92.  It 
seems  that  the  first  delegation  of  the  powers  of  the  lord  chancellor  to  commissioners 
was  in  the  time  of  Cardinal  Wolsey.  It  will  be  found  in  Eymer's  Pcedera,  torn.  14, 
p.  299;  Parke,  Hist,  of  Chan.  60,  61.  It  was  in  the  same  reign  that  the  Master  of 
the  Rolls  (it  is  said)  under  a  like  appointment,  first  sat  apart  and  used  to  hear  causes 
at  the  Rolls  in  the  afternoon.  The  master,  who  thus  first  heard  causes,  was  Cuthbert 
Tunstall.  4  Reeves,  Hist,  of  the  Law,  368,  369;  5  Reeves,  Hist.  160.  But  see 
Discourse  on  the  Judicial  Authority  of  the  Master  of  the  Rolls  (1728),  §  3,  p.  83,  &c. ; 
id.  §  4,  p.  110,  &c.,  ascribed  to  Sir  Joseph  Jekyll. 

(d)  4  Reeves,  Hist.  370. 


26  EQUITY   JURISPRUDENCE.  [CH.    II. 

favour  as  well  as  dignity  to  the  decrees  of  the  court.  But  still  there 
were  clamours  from  those  who  were  hostile  to  equity  during  his  time ; 
and  especially  to  the  power  of  issuing  injunctions  to  judgments  and 
other  proceedings  in  order  to  prevent  irreparable  injustice  (e).  This 
controversy  was  renewed  with  much  greater  heat  and  violence  in  the 
reign  of  James  I.  upon  the  point,  whether  a  court  of  equity  could 
give  relief  for  or  against  a  judgment  at  common  law;  and  it  was 
mainly  conducted  by  Lord  Coke  against,  and  by  Lord  EUesmere  in 
favour  of,  the  chancery  jurisdiction.  At  last,  the  matter  came  directly 
before  the  king,  and,  upon  the  advice  and  opinion  of  very  learned 
lawyers,  to  whom  he  referred  it,  his  majesty  gave  judgment  in  favour 
of  the  equitable  jurisdiction  in  such  cases  (/).  Lord  Bacon  succeeded 
Lord  EUesmere ;  but  few  of  his  decrees,  which  have  reached  us,  are 
of  any  importance  to  posterity  (g).  But  his  celebrated  ordinances  for 
the  regulation  of  chancery  gave  a  systematical  character  to  the  business 
of  the  court;  and  some  of  the  most  important  of  them  still  constitute 
the  fundamental  principles  of  its  present  practice  (li). 

§  52.  From  this  period,  down  to  the  time  when  Sir  Heneage  Finch 
(afterwards  Earl  of  Nottingham)  was  elevated  to  the  Bench  (in  1673), 
little  improvement  was  made,  either  in  the  principles  or  in  the  practice 
of  chancery  (i) ;  and  none  of  the  persons  who  held  the  seals  were 
distinguished  for  uncommon  attainments  or  learning  in  their  profes- 
sion (k).  With  Lord  Nottingham  a  new  era  commenced.  He  was  a 
person  of  eminent  abilities,  and  the  most  incorruptible  integrity.  He 
possessed  a  fine  genius,  great  liberality  of  views,  and  a  thorough 
comprehension  of  the  true  principles  of  equity ;  so  that  he  was  enabled 
to  disentangle  the  doctrines  from  any  narrow  and  technical  notions, 

(e)  Sir  James  Mackintosh's  Life  of  Sir  Thomas  More;  4  Reeves,  Hist.  370  to  376; 
Parke,  Hiat.  Chan.  63  to  65.  There  is  a  curious  anecdote  related  of  Sir  Thomas  More, 
who  invited  the  judges  to  dine  veith  him,  and,  after  dinner,  showed  them  the  number 
and  nature  of  the  causes  in  which  he  had  granted  injunctions  to  judgments  of  the  court 
of  common  law;  and  the  judges,  upon  full  debate  of  the  matters,  confessed  that  they 
could  have  done  no  otherwise  themselves.  The  anecdote  is  given  at  large  in  Mr. 
Cooper's  Lettres  sur  la  Gour  de  la  Chancellerie,  Letter  26,  p.  185,  note  1,  from  Eoper's 
Life  of  Sir  Thomas  More,  ed.  T.  Hearne,  23. 

(/)  1  Collect.  Jurid.  23,  &c. ;  3  Black.  Comm.  54 ;  Parke,  Hist.  Chan.  80.  The 
controversy  gave  rise  to  many  pamphlets,  not  only  at  the  time,  but  in  later  periods. 
The  learned  reader,  who  is  inclined  to  enter  upon  the  discussion  of  these  points,  now 
of  no  importance,  except  as  a  part  of  the  juridical  history  of  England,  may  consult 
advantageously  the  following  works  :  Observations  concerning  the  Office  of  Lord 
Chancellor,  published  in  1651,  and  ascribed  (though  it  is  said  incorrectly)  to  Lord 
EUesmere.  Discourse  concerning  the  Judicial  Authority  of  the  Master  of  the  Eolls, 
p.  61.  A  Vindication  of  the  Judgment  of  King  James.  &c.,  printed  in  an  Appendix 
to  the  first  volume  of  Beports  in  Chancery,  and  in  1  Collect.  Jurid.  23,  &c. ;  (he 
several  Treatises  on  the  Writ  of  Subpoena  in  Chancery,  and  the  Abuses  and  Remedies 
in  Chancery,  in  Hargreave's  Law  Tracts,  pp.  321,  425;  and  4  Eeeves,  Hist,  of  the 
Law,  pp.  370  to  377 ;  2  Swanst.  24,  note. 

(g)  3  Black.  Comm.  66. 

(h)  See  Bacon's  Ord.  in  Chancery,  by  Beames. 

(i)  3  Black.  Comm.  66. 

(k)  See  Parke,  Hist.  Chan.  92  to  210. 


§    52^-53.]  ORIGIN   AND    HISTORY.  27 

and  to  expand  the  remedial  justice  of  the  court  far  beyond  the  aims 
of  his  predecessors.  In  the  course  of  nine  years,  during  which  he 
presided  in  the  court,  he  built  up  a  system  of  jurisprudence  and 
jurisdiction  upon  wide  and  rational  foundations  which  served  as  a 
model  for  succeeding  judges,  and  gave  a  new  character  to  the  court  (I) ; 
and  hence  he  has  been  emphatically  called  "  the  father  of  equity  "  (w). 
His  immediate  successors  availed  themselves  very  greatly  of  his 
profound  learning  and  judgment.  But  a  suecess.or  was  still  wanted, 
who  with  equal  genius,  abilities,  and  hberality,  should  hold  the  seals 
for  a  period  long  enough  to  enable  him  to  widen  the  foundation  and 
complete  the  structure,  begun  and  planned  by  that  illustrious  man. 
Such  a  successor  at  length  appeared  in  the  person  of  Lord  Hardwieke. 
This  great  judge  presided  in  the  Court  of  Chancery  during  the  period 
of  twenty  years ;  and  his  numerous  decisions  evince  the  most  thorough, 
learning,  the  most  exquisite  skill,  and  the  most  elegant  juridical 
analysis.  There  reigns,  through  all  of  them,  a  spirit  of  conscientious! 
and  discriminating  equity,  a  sound  and  enlightened  judgment,  as 
rare  as  it  is  persuasive,  and  a  power  of  illustration  from  analogous 
topics  of  the  law,  as  copious  as  it  is  exact  and  edifying.  Few  judges 
have  left  behind  them  a  reputation  more  bright  and  enduring;  few 
have  had  so  favourable  an  opportunity  of  conferring  lasting  benefits 
upon  the  jurisprudence  of  their  country ;  and  still  fewer  have  improved 
it  by  so  large,  so  various,  and  so  important  contributions.  Lord 
Hardwieke,  like  Lord  Mansfield,  combined  with  his  judicial  character 
the  still  more  embarrassing  character  of  a  statesman,  and,  in  some 
sort',  of  a  minister  of  state.  Both  of  them,  of  course,  encountered 
great  political  opposition  (whether  rightly  or  wrongfully,  it  is  beside 
the  purpose  of  this  work  to  inquire) ;  and  it  is  fortunate  for  them, 
that  their  judicial  labours  are  embodied  in  solid  volumes,  so  that, 
when  the  prejudices  and  the  passions  of  the  times  are  passed  away, 
they  may  remain  open  to  the  severest  scrutiny,  and  claim  from 
posterity  a  just  and  unimpeachable  reward  («.). 

§  53.  This  short  and  imperfect  sketch  of  the  origin  and  history  of 
equity  jurisdiction  in  England  will  be  here  concluded.  It  has  not 
been  inserted  in  this  place  from  the  mere  desire  to  gratify  those 
whose  curiosity  may  lead  them  to  indulge  in  antiquarian  inquiries, 
laudable  and  interesting  as  it  may  be.  But  it  seemed,  if  not 
indispensable,  at  least  important,  as  an  introduction  to  a  more  minute 

(I)  Mr.  Justice  Blackstone  has  pronounced  a  beautiful  eulogy  on  him,  in  3  Black. 
Comm.  58,  from  which  the  text  is,  with  slight  alterations,  borrowed.  See  also  i 
Black.  Comm.  442. 

(m)  1  Mad.  Ch.  Pr.  Preface,  13.  See  Parke,  Hist.  Chan.  211,  212,  213,  214  r 
1  Kent,  Comm.  Lect.  21,  p.  492  {2nd  edit.). 

(n)  See  1  Kent,  Comm'.  Lect.  21,  p.  494  (2nd  edit.),  and  Lord  Kenyon's  opinion 
in  Goodtitle  v.  Otway,  7  T.  E.  411.  See  also  1  Butler's  Eeminis.  §  11,  n.  1,  2, 
pp.  104  to  116.  Lord  Bldon,  in  Ex  parte  Greenway,  6  Ves.  812,  said,  "He  [Lord; 
Hardwieke]  was  one  of  the  greatest  judges  that  ever  sat  in  "Westminster  Hall." 


"28  EQUITY   JURISPRUDENCE.  [CH.    II. 

.and  exact  survey  of  that  jurisdiction,  as  administered  in  the  present 
ftimes.  In  the  first  place,  without  some  knowledge  of  the  origin  and 
history  of  Equity  Jurisdiction,  it  will  be  difficult  to  ascertain  the 
«xact  nature  and  limits  of  that  jurisdiction;  and  how  it  can,  or  ought 
to,  be  applied  to  new  cases,  as  they  arise.  If  it  be  a  mere  arbitrary, 
«r  usurped  jurisdiction,  standing  upon  authority  and  practice,  it  should 
be  confined  within  the  very  limits  of  its  present  range;  and  the  terra 
incognita,  and  the  tetra  prohibita,  ought  to  be  the  same,  as  to  its 
boundaries.  If,  on  the  other  hand,  its  jurisdiction  be  legitimate,  and 
founded  in  the  very  nature  of  remedial  justice,  and  in  the  delegation 
of  authority  in  all  cases,  where  a  plain,  adequate,  and  complete  remedy 
does  not  exist  in  any  other  court,  to  protect  acknowledged  rights, 
and  to  prevent  acknowledged  wrongs  (that  is,  acknowledged  in  the 
municipal  jurisprudence),  then  it  is  obvious,  that  it  has  an  expansiye 
power,  to  meet  new  exigencies;  and  the  sole  question,  applicable  to 
-the  point  of  jurisdiction,  must  from  time  to  time  be,  whether  such 
lights  and  wrongs  do  exist,  and  whether  the  remedies  therefor  in 
other  courtiS,  and  especially  in  the  courts  of  common  law,  are  full, 
and  adequate  to  redress.  If  the  present  examination  (however 
imperfect)  has  tended  to  any  result,  it  is  to  establish,  that  the  latter 
is  the  true  and  constitutional  predicament  and  character  of  the  Court 
•of  Chancery. 

§  54.  In  the  next  place,  a  knowledge  of  the  origin  and  history  of 
•equity  jurisdiction  will  help  us  to  understand,  and  in  some  measure 
-to  explain,  as  well  as  to  limit,  the  anomalies,  which  do  confessedly 
«xist  in  the  system.  We  may  trace  them  back  to  their  sources,  and 
ascertain  how  far  they  were  the  result  of  accidental,  or  political,  or 
other  circumstances ;  of  ignorance,  or  perversity,  or  mistake  in  the 
judges;  of  imperfect  development  of  principles;  of  narrow  views  of 
public  policy ;  of  the  seductive  influence  of  prerogative ;  or,  finally, 
of  a  spirit  of  accommodation  to  the  institutions,  habits,  laws,  or 
tenures  of  the  age,  which  have  long  since  been  abolished,  but  have 
left  the  scattered  fragments  of  their  former  existence  behind  them. 
We  shall  thus  be  enabled  to  see  more  clearly,  how  far  the  operation 
of  these  anomalies  should  be  strengthened  or  widened ;  when  they 
may  be  safely  disregarded,  in  their  application,  to  new  cases  and  new 
circumstances;  and  when,  through  a  deformity  in  the  general  system, 
they  cannot  be  removed,  without  endangering  the  existence  of  other 
portions  of  the  fabric,  or  interfering  with  the  proportions  of  other 
principles,  which  have  been  moulded  and  adjusted  with  reference  to 
them. 

§  55.  In  the  next  place,  such  a  knowledge  will  enable  us  to  prepare 
the  way  for  the  gradual  improvement,  as  well  of  the  science  itself,  as 
of  the  system  of  its  operations.  Changes  in  law,  to  be  safe,  must  be 
slowly  and  cautiously  introduced,  and  thoroughly  examined.  He  who 
is  ill-read  in  the  history  of  any  law,  must  be  ill-prepared  to  know  its 


§  54 — 55a.]  ORIGIN  and  history.  2€P 

reasons  as  well  as  its  effects.  The  causes  or  occasions  of  laws  are 
sometimes  as  important  to  be  traced  out  as  their  consequences.  Thee 
new  remedy  to  be  applied  may,  otherwise,  be  as  mischievous  as  the- 
wrong  to  be  redressed.  History  has  been  said  to  be  philosophy 
teaching  by  examples ;  and  to  no  subject  is  this  remark  more  applicable 
than  to  law,  which  is  emphatically  the  science  of  human  experience, 
A  sketch,  however  general,  of  the  origin  and  sources  of  any  portion 
of  jurisprudence,  may  at  least  serve  the  purpose  of  pointing  out  the 
paths  to  be  explored;  and,  by  guiding  the  inquirer  to  the  very  places 
he  seeks,  may  save  him  from  the  labour  of  wandering  in  the  devious 
tracks,  and  of  bewildering  himself  in  mazes  of  errors  as  fruitless  as 
they  may  be  intricate. 

§  55a..  The  High  Court  of  Chancery,  which  was,  as  we  have  seen, 

a  Court  distinct  from,  and  superior  to,  the  Courts  of  Common  law,  was 

abolished  by  the   Supreme  Court  of  Judicature  Act,   1873   (o),   and,. 

together  with  the  Courts  of  Common  law  and  the  Courts  of  Probate, 

Divorce,    and    Admiralty,    was    constituted    one    Supreme    Court    of 

Judicature  in  England.     This  Supreme  Court  consists  of  two  divisions 

— the  High  Court,  of  Justice  and  the  Court  of  Appeal — and  the  High 

Court  of  Chancery  has  to  a  large  extent  become  the  Chancery  Division 

of    the    High    Court    of    Justice.      To    this    Chancery    Division    are 

assigned  (p)  all  causes  and  matters  for  any  of  the  following  purposes :  — 

The  administration  of  the  estates  of  deceased  persons. 

The   dissolution   of  partnerships   or   the   taking   of  partnership 

or  other  accounts. 

The  redemption  or  foreclosure  of  mortgages. 
The  raising  of  portions  or  other  charges  on  land. 
The  sale  and  distribution  of  the  proceeds  of  property  subject- 
to  any  lien  or  charge. 

The  execution  of  trusts,  charitable  or  private. 
The  rectification,   or  setting  aside,  or  cancellation  of  deeds  or 
other  written  instruments. 

The    specific   performance    of   contracts   between    vendors   and. 
purchasers  of  real  estates,  including  contracts  for  leases. 
The  partition  or  sale  of  real  estates. 
The  wardship  of  infants  and  the  care  of  infants'  estates. 
Since  this  Act  other  matters  have  been  assigned  by  various  statutes 
to  the  Chancery  Division;  e.g.,  those  arising  under  the  Conveyancing- 
Act,  1881  (g),  the  Settled  Land  Act,  1882  (r),  and  the  Guardianship  of 
Infants  Act,  1886  (s). 

The    Judicature   Act,    1873,    further   provides   for   the   recognition. 
by  all  divisions  of  the  High  Court  of  the  principles  formerly  adopted- 
Co)  36  &  37  Vict.  c.  66,  s.  3.  (p)  Sect.  34. 
(a)  U  &  45  Vict.  u.  41,  s.  63.  W  45  &  46  Vict.  c.  38,  a.  49. 
(s)  49  &  50  Vict.  c.  27,  s.  9. 


30  EQUITY   JURISPRUDENCE.  [CH.    II. 

by  the  Court  of  Chancery,  for  by  s.  24  of  this  Act  it  is  provided 
that,  for  the  future,  claims  by  a  plaintiff  to  any  equitable  estate 
or  right,  or  to  relief  on  any  equitable  ground,  are  to  be  recognised 
by  all  branches  of  the  court;  as  also  are  claims  by  a  defendant 
to  an  equitable  estate  or  right  or  relief  on  equitable  grounds;  and 
whenever  equitable  estates,  titles,  rights,  duties,  and  liabilities  appear 
incidentally  they  are  to  be  recognised  (t).  The  effect  of  this  is  that 
the  court  is  now  neither  a  court  of  law  nor  a  court  of  equity,  but 
a  court  of  complete  jurisdiction  (m);  and,  if  there  were  a  variance 
between  what  before  the  Act  a  court  of  law  and  a  court  of  equity  would 
have  done,  the  rules  of  the  court  of  equity  must  now  prevail  (a;). 

The  Act,  after  having  in  particular  insta,nces  (y)  enacted  that 
certain  rules  of  equity  should  prevail,  further  provides  by  sub-s.  11 
of  s.  25,  that  generally  in  all  matters  not  hereinbefore  particularly 
"  mentioned  in  which  there  is  any  conflict  or  variance  between  the 
rules  of  equity  and  the  rules  of  the  common  law,  with  reference  to  the 
same  matter,  the  rules  of  equity  shall  prevail." 

The  Act  further  did  away  altogether  with  the  auxiliary  jurisdiction 
of  the  Court  of  Chancery.  First,  as  to  an  injunction.  This  originally 
had  been  a  remedy  peculiar  to  the  Court  of  Chancery,  and,  although 
power  was  conferred  upon  the  courts  of  common  law  to  grant  an 
injunction  by  ss.  79  to  82  of  the  Common  Law  Procedure  Act,  1854, 
as  amended  by  ss.  32  and  33  of  the  Common  Law  Procedure  Act,  1860, 
these  Acts  only  allowed  the  plaintiff  to  ask  for  this  peculiar  remedy 
when  the  wrong  had  actually  been  committed;  but  now  by  s.  25, 
sub-s.  8,  of  the  Judicature  Act,  1878,  "  an  injunction  may  be  granted 
in  any  case  in  which  it  shall  appear  to  the  court  to  be  just  or  convenient 
that  such  order  should  be  made  "  {z). 

The  injunction  by  means  of  which  the  Court  of  Chancery  used  to 
stay  proceedings  in  the  common  law  and  other  courts,  where  the 
defendant  had  a  good  equitable  defence,  is  now  obsolete ;  but  by 
6.  24,  sub-s.  6,  of  the  Judicature  Act,  1873,  it  is  provided  that  no  cause 
or  proceeding  at  any  time  pending  in  the  High  Court  of  Justice  or 
before  the  Court  of  Appeal  shall  be  restrained  by  prohibition  or 
injunction;  but  every  matter  of  equity  in  which  an  injunction  against 
the  prosecution  of  any  cause  or  proceeding  might  have  been  obtained 

(t)  Sub-sects.  2,  3,  and  4. 

(u)  TampUn  v.  James,  15  Ch.  D.  215. 

(x)  Per  Lord  Cairns,  in  Pugh  v.  Heath,  7  App.  Gas.  237.  But  in  Joseph  v.  Lyons 
(5  Q.  B.  D.  280),  it  was  held  that  the  Judicature  Acts  had  not  abolished  the  distinc- 
tion between  legal  and  equitable  interests ;  they  merely  enable  the  High  Court  to 
administer  legal  and  equitable  remedies.     Vide  per  Cotton,  L.J.,  5  Q.  B.  D.  280. 

(i/)  See  sub-sects.  2,  3,  4,  7,  and  10,  all  of  which  will  be  referred  to  afterwards. 

(z)  This  section  does  not  alter  the  principles  on  which  injunctions  were  formerly 
granted;  but,  in  ascertaining  what  is  just,  regard  must  be  had  to  what  is  convenient 
(Day  V.  Brownrigg,  10  Ch.  D.  307).  And  an  injunction  may  be  granted  even  on  an 
interlocutory  application  (sub-s.  8).  See  also  E.  S.  C.  Ord.  1.  r.  6.  See  also  §  873 
jn,  b,  c,  infra. 


§    55a.]  ORIGIN    AND    HISTORY.  31 

if  this  Act  had  not  passed,  either  unconditionally  or  on  any  terms  or 
conditions,  may  be  relied  on  by  way  of  defence  thereto  (a). 

Next,  as  to  discovery.  Discovery  could  formerly  be  obtained  only 
by  means  of  a  bill  in  the  Court  of  Chancery,  but  power  to  grant 
discovery  was  conferred  on  the  courts  of  common  law  by  ss.  51  and 
52  of  the  Common  Law  Procedure  Act,  1854. 

But  this  right  was  only  a  limited  right,  and  the  custom  and  practice 
of  discovery  in  the  common  law  courts  differed  from  that  prevailing  in 
the  Court  of  Chancery.  The  present  practice  in  discovery  depends 
"  upon  the  orders  and  rules  of  the  Judicature  Acts."  But  in  them 
the  extended  principles  of  the  Court  of  Chancery  were  followed  rather 
than  the  narrower  practice  of  the  courts  of  common  law  itself  derived 
from  the  practice  in  equity  (b). 

Thus,  under  the  Judicature  Act  the  practice  in  discovers  is  a  new 
intermediate  practice ;  but  where  there  is  any  conflict  or  variance 
between  the  rules  of  common  law  and  equity,  with  reference  to  the 
same  matter,  the  rule  of  equity  will  prevail  (c). 

The  next  remedy  of  the  Court  of  Chancery  was  the  appointment 
of  a  receiver.  S.  25,  sub-s.  8,  of  the  Judicature  Act  gives  power  to 
any  division  of  the  High  Court  to  appoint  a  receiver,  a  power 
originally  vested  only  in  the  Court  of  Chancery  (d). 

From  the  above  concise  account  it  will  be  seen  that  the  changes 
made  by  the  Judicature  Act  relate  in  a  very  slight  degree,  if  at  all,  to 
the  principles  of  equity  jurisprudence  which  are  the  subject  of  the 
present  treatise  (e). 

It  has  not  been  thought  necessary  to  alter  the  phrases  "  Court  of 
Chancery  "  or  "  courts  of  equity,"  but  these  phrases  must  be  under- 
stood, since  1873,  to  signify  the  Chancery  Division  of  the  High 
Court  of  Justice  and  the  Court  of  Appeal  therefrom.  In  the  same 
way  the  phrase  "  courts  of  common  law  "  means,  since  the  Order  in 
Council  made  16th  December,  1880,  in  pursuance  of  s.  32  of  the 
Judicature  Act,  1873,  the  King's  Bench  Division  of  the  High  Court. 

(o)  An  injunction  may  still  be  granted  to  restrain  »■  person  from  instituttng  pro- 
ceedings (Besant  v.  Wood,  12  Ch.  D.  630).  So,  too,  an  injunction  may  be  granted 
to  restrain  proceedings  in  inferior  courts,  or  in  tribunals  constituted  for  a  special 
purpose,  or  in  tribunals  of  foreign  countries.  See  Annual  Practice,  and  Kerr 
on  Injunctions,  3rd  ed.,  pp.  576-7.  The  same  sub-section  provides  that  any  court 
may  stay  proceedings  in  any  matter  before  it. 

(b)  Jones  v.  Monte  Video  Gas  Co.,  5  Q.  B.  D.  556,  per  Brett,  L.J.,  at  558. 

(c)  Bustros  V.  White,  1  Q.  B.  D.  496.  The  present  practice  as  to  discovery  is 
regulated  by  Ord.  xxxi.  E.  S.  C.  (1883).     See  infra,  §  1480. 

(d)  See,  as  to  the  grounds  on  which  the  Court  of  Chancery  appointed  a  receiver, 
infra,  §  829  and  following  sections. 

(e)  Since  the  Judicature  Act,  1873,  the  Lord  Chancellor  has  not  sat  as  a  Judge  of 
a  Court  of  Pirst  Instance;  and  since  the  Judicature  Act,  1881  (44  &  45  Vict.  c.  68), 
the  Master  of  the  Bolls  has  been  a  Judge  of  Appeal  only.  Since  the  Judicature  Act. 
1873,  no  new  Vice-Chancellor  has  been  created,  and  the  old  Court  of  Chancery  Appeal 
was  merged  in  the  Court  of  Appeal  of  the  Supreme  Court  by  the  same  enactment. 


32  GENERAL    VIEW.  [CH.    III. 


CHAPTER    III. 


GENERAL   VIEW    OF   EQUITY    JURISDICTION. 

§  59.  Having  traced  out  the  nature  and  history  of  Equity  Juris- 
prudence, we  are  naturally  led  to  the  consideration  of  the  various 
subjects  which  it  embraces,  and  the  measure  and  extent  of  its 
jurisdiction.  Courts  of  equity,  in  the  exercise  of  their  jurisdiction, 
may,  in  a  general  sense,  be  said  to  have  differed  from  common  law, 
in  the  modes  of  trial,  in  the  modes  of  proof,  and  in  the  modes  of  relief. 
One  or  more  of  these  elements  will  be  found  essentially  to  have  entered, 
as  an  ingredient,  into  every  subject  over  which  they  exerted  their 
authority.  Lord  Coke  has,  in  his  summary  manner,  stated,  that  three 
things  were  to  be  judged  of  in  the  court  of  conscience  or  equity : 
covin,  accident,  and  breach  of  confidence  (a) ;  or,  as  we  should  now 
say,  matters  of  fraud,  accident,  and  trust.  Mr.  Justice  Blackstone 
has  also  said,  that  courts  of  equity  were  established  "  to  detect  latent 
frauds  and  concealments  which  the  process  of  the  courts  of  law  is  not 
adapted  to  reach ;  to  enforce  the  execution  of  such  matters  of  trust 
and  confidence  as  are  binding  in  conscience,  though  not  cognizable 
in  a  court  of  law ;  to  deliver  from  eueh  dangers  as  are  owing  to 
misfortune,  or  oversight;  and  to  give  a  more  specific  relief,  and 
more  adapted  to  the  circumstances  of  the  case,  than  can  always  be 
obtained  by  the  generality  of  the  rules  of  the  positive  or  common 
law  "  (b). 

§  60.  These,  as  general  descriptions,  are  well  enough;  but  they 
are  far  too  loose  and  inexact  to  subserve  the  purposes  of  those  who 
seek  an  accurate  knowledge  of  the  actual,  or  supposed,  boundaries 
of  equity  jurisdiction.  Thus,  for  example,  although  fraud,  accident, 
and  trust  are  proper  objects  of  courts  of  equity,  it  is  by  no  means 
true  that  they  are  exclusively  cognizable  therein.  On  the  contrary, 
fraud  is,  in  many  cases,  cognizable  in  a  court  of  law.  Thus,  for 
example,  reading  a  deed  falsely  to  an  illiterate  person,  whether  it  be 
so  read  by  the  grantee,  or  by  a  stranger,  avoids  it  as  to  the  other 

(a)  4  Inst.  84;  Com.  Dig.  Chancery,  Z. ;  3  Black.  Comm.  431 ;  1  Eq.  Abr.  Courts, 
B.  §  4,  p.  130;  Bac.  Abridg.  Court  of  Chancery,  C. 

(b)  1  Black.  Comm.  92.     And  see  3  Black.  Comm.  429  to  432. 


§    59 — 61.]  GENERAL     VIEW.  33 

party,  at  law  (c).  And,  sometimes,  fraud,  such  as  fraud  in  obtaining  a 
will,  or  devise  of  lands,  is  cognizable  there  (d).  Many  cases  of  accidents 
are  remediable  at  law,  such  as  losses  of  deeds,  mistakes  in  accounts 
and  receipts,  impossibilities  in  the  strict  performance  of  conditions, 
and  other  like  cases.  And  even  trusts,  though  in  general  of  a  peculiar 
and  exclusive  jurisdiction  in  equity,  are  sometimes  cognizable  at  law; 
as,  for  instance,  cases  of  ^ailments,  and  that  larger  class  of  cases, 
where  the  action  for  money  had  and  received  for  another's  use  is 
maintained  ex  xquo  et  bono  (e). 

§  61.  On  the  other  hand,  there  are  cases  of  fraud,  of  accident,  and 
of  trust,  which  neither  courts  of  law,  nor  of  equity,  presume  to 
relieve  or  mitigate.  And,  where  the  law  has  determined  a  matter, 
with  all  its  circumstances,  equity  cannot  (as  we  have  seen)  inter- 
meddle against  the  positive  rules  of  law.  And,  therefore,  equity  will 
not  interfere  in  such  cases,  notwithstanding  accident,  or  unavoidable 
necessity.  This  was  long  ago  remarked  by  Lord  Talbot,  who,  after 
saying,  "  There  are  instances,  indeed,  in  which  a  court  of  equity  gives 
remedy,  where  the  law  gives  none, ' '  added :  ' '  But  where  a  particular 
remedy  is  given  by  law,  and  that  remedy  is  bounded  and  circum- 
scribed by  particular  rules,  it  would  be  very  improper  for  this  court  to 
take  it  up,  where  the  law  leaves  it,  and  extend  it  further  than  the 
law  allows."  And  upon  this  ground,  relief  was  refused  to  a  creditor 
of  the  wife  against  her  husband,  after  her  death,  though  he  had 
received  a  large  fortune  with  her  on  his  marriage  (/).  So,  a  man  may 
by  accident  omit  to  make  a  will,  appointment,  or  gift,  in  favour  of 
some  friend  or  relative;  or  he  may  leave  his  will  unfinished;  and 
yet  there  can  be  no  relief  (g).  And  many  cases  of  the  non-performance 
of  conditioris  are  equally  without  redress  {h).  So,  cases  of  trust 
may  exist,  in  which  the  parties  must  abide  by  their  own  false 
confidence  in  others,  without  any  aid  from  courts  of  justice.  Thus, 
in  cases  of  illegal  contracts,  or  those  in  which  one  party  has  placed 
property  in  the  hands  of  another  for  illegal  purposes,  as  for  smuggling, 
if  the  latter  refuses  to  account  for  the  proceeds,  and  fraudulently  or 
unjustly  withholds  them,  the  former  must  abide  by  his  loss;  for 
In  pari  delicto  melior  est  conditio  possidentis,  et  defendentis,  is  a 
maxim  of  public  policy  equally  respected  in  courts  of  law  and  courts 
of  equity  (i).  And,  on  the  other  hand,  where  the  fraud  is  perpetrated 
by  one  party  only,   still,   if  it  involves  a  public   crime,  ■  and  redress 

(c)  Thoroughgood's  Case,  2  Co.  9  a;  Shulter's  Case,  12  Co.  90;  Jenkin's  Cent.  166. 

(d)  1  Hovenden  on  Frauds,  Introd.  p.  16 ;  id.  ch.  10,  p.  252. 

(e)  3  Black.  Comm.  431,  432. 

(/)  Heard  v.  Stanford,  Cas.  temp.  Talb.  174. 

ig)  Toilet  V.  Toilet,  2  P.  Wme.  489;  Poole  v.  Shergold,  10  Ves.  370;  Martin  v. 
Cooper,  L.  E.  3  Ch.  47. 

(h)  In  re  Emson;  Grain  v.  Grain,  74  L.  J.  Ch.  565;  In  re  Lewis;  Lewis  v.  Lewis, 
1904,  2  Ch.  656. 

(t)  Curtis  V.  Perry,  6  Ves.  739;  Ewing  v.  Osbaldiston,  2  M.  &  Cr.  58. 
E.  J.  3 


34  EQUITY  JURISPRUDENCE.  [CH.  III. 

cannot  be  obtained,  except  by  a  discovery  of  the  facts  from  him 
personally,  the  law  will  not  compel  him  to  accuse  himself  of  a  crime ; 
and  therefore  the  case  is  one  of  irremediable  injury. 

§  62.  These  are  but  a  few  anaong  many  instances,  which  might  be 
selected,  to  establish  the  justice  of  the  remark,  that  even  in  cases 
professedly  within  the  scope  of  equity  jurisdiction,  such  as  fraud, 
accident,  and  trust,  there  are  many  exceptions ;  and  that  all  that 
can  be  ascribed  to  such  general  allegations  is  genetal  truth.  The  true 
nature  and  extent  of  equity  jurisdiction,  as  at  present  administered, 
must  be  ascertained  by  a  specifie  enumeration  of  its  actual  limits  in 
each  particular  class  of  cases,  falling  within  its  remedial  justice.  This 
will,  accordingly,  he  done  in  the  subsequent  pages. 

§  63.  We  may  here  notice  some  of  those  maxims  and  general 
axioms,  which  are  of  frequent  recurrence  in  the  discussion  of  equity 
jurisprudence. 

§  64.  In  the  first  place,  it  is  a  common  maxim,  that  equity  follows 
the  law,  Mquitas  sequitur  legem  (k).  This  maxim  is  susceptible  of 
various  interpretations.  It  may  mean,  that  equity  adopts  and  follows 
the  rules  of  law  in  all  cases  to  which  those  rules  may,  in  terms,  be 
applicable ;  or  it  may  mean,  that  equity,  in  dealing  with  cases  of  an 
equitable  nature,  adopts  and  follows  the  analogies  furnished  by  the 
rules  of  law.  Now,  the  maxim  is  true  in  both  of  these  senses,  as 
applied  to  different  cases  and  different  circumstances.  It  is  universally 
true  in  neither  sense;  or  rather,  it  is  not  of  universal  application  (I). 
Where  a  rule,  either  of  the  common  or  the  statute  law,  is  direct,  and 
governs  the  case  with  all  its  circumstances,  or  the  particular  point, 
a  court  of  equity  is  as  much  bound  by  it  as  a  court  of  law,  and  can 
as  little  justify  a  departure  from  it  (m).  If  the  law  commands  or 
prohibits  a  thing  to  be  done,  equity  cannot  enjoin  the  contrary,  or 
dispense  with  the  obligation.  Thus,  since  the  law  has  declared  that 
the  eldest  son  shall  take  by  descent  the  whole  undevised  estate  of 
his  parent,  except  in  the  case  of  gavelkind  lands,  a  court  of  equity 
cannot  disregard  the  canon  of  descent;  but  must  give  full  effect  and 
vigour  to  it  in  all  controversies,  in  which  the  title  is  asserted.  And 
yet,  there  are  cases  in  which  equity  will  control  the  _legal  title  of  an 
heir,  general  or  special,  when  it  would  be  deemed  absolute  at  law ;  and 
in  which,  therefore,  so  far  from  following  the  law,  it  openly  abandons 
it.     Thus,  if  a  tenant  in  tail,  not  knowing  the  fact,  should,  upon  his 

(fe)  In  re  Irwin;  Irwin  v.  Parkes,  1904,  2  Ch.  752.  See  Dixon  v.  Enoch,  L.  E. 
13  Eq.  394,  for  a,  statutory  exception  to  the  rule. 

(I)  Sir  Thomas  Clarke  (Master  of  the  EoUs),  in  one  of  his  elaborate  opinions,  has 
remarked,  in  regard  to  uses  and  trusts,  that,  at  law,  the  legal  operation  controls  the 
intent;  but,  in  equity,  the  intent  controls  the  legal  operation  of  the  deed.  Burgess  v. 
Wheate,  1  W.  Black.  137.  See  also  In  re  Thursby ;  Grant  v.  Littledale,  1910,  2  Ch. 
181;  79  L.  J.  Ch.  638. 

(to)  Curtis  V.  Perry,  6  Ves.  739;  Thompson  v.  Leake,  1  Madd.  39;  Ewing  v. 
Osbaldiston,  2  M.  &  Cr.  53. 


§    62 64i).]  GENERAL   VIEW.  35 

marriage,  make  a  settlement  on  his  wife,  and  the  heir  in  tail  should 
engross  the  settlement,  and  conceal  the  fact,  although  at  law  his  title 
would  be  absolute,  a  court  of  equity  would  have  awarded  a  perpetual 
injunction  against  asserting  it  to  the  prejudice  of  the  settlement  (n). 
So,  if  an  heir-at-law  should,  by  parol,  promise  his  father  to  pay  his 
sisters'  portions,  if  he  would  not  direct  timber  to  be  felled  to  raise 
them ;  although  discharged  at  law,  he  would  in  equity  be  deemed  liable 
to  pay  them,  in  the  same  way,  as  if  they  had  been  charged  on  the 
land  (o).    And  many  cases  of  a  like  nature  may  be  put  (p). 

§  64a.  So,  in  many  cases,  equity  acts  by  analogy  to  the  rules  of 
law  in  relation  to  equitable  titles  and  estates.  Thus,  although  the 
statutes  of  limitations  were  in  their  terms  applicable  to  courts  of  law 
only  (q),  yet  equity,  by  analogy,  acts  upon  them,  and  refuses  relief 
under  like  circumstances.  Equity  always  discountenances  laches,  and 
holds  that  laches  is  presumable  in  cases  where  it  is  positively  declared 
at  law.  Thus,  in  cases  of  equitable  titles  in  land,  equity  requires  relief 
to  be  sought  within  the  same  period  in  which  an  ejectment  would  lie 
at  law ;  and,  in  cases  of  personal  claims,  it  also  requires  relief  to  be 
sought  within  the  period  prescribed  for  personal  suits  of  a  like 
nature  (r).  And  yet  there  are  cases  in  which  the  statutes  would  be  a 
bar  at  law,  but  in  which  equity  would,  notwithstanding,  grant  relief; 
and,  on  the  other  hand,  there  are  cases  where  the  statutes  would  not 
be  a  bar  at  law,  but  where  equity,  notwithstanding,  would  refuse 
relief  (s).  But  all  these  cases  stand  on  special  circumstances,  which 
courts  of  equity  can  take  notice  of  when  courts  of  law  may  be  bound 
by  the  positive  bar  of  the  statutes.  And  there  are  many  other  cases 
where  the  rules  of  law  and  equity  on  similar  subjects  are  not  exactly 
co-extensive  as  to  the  recognition  of  rights  or  the  maintenance  of 
remedy.  Thus,  a  person  may  be  tenant  by  the  courtesy  of  his  wife's 
trust  estate,  but  she  was  not,  till  the  3  &  4  Will.  IV.  c.  105,  entitled  to 
dower  in  his  trust  estate.  So,  where  a  power  is  defectively  executed, 
equity  will  often  aid  it;  whereas,  at  law,  the  appointment  is  wholly 
nugatory. 

§  64b.  Other  illustrations  of  the  same  maxim  may  be  drawn  from 
the  known  analogies  of  legal  and  trust  estates.     In  general,  in  courts 

(n)  Raw  V.  Potts,  Prec.  Ch.  35. 

(o)  Dutton  V.  Poole,  1  Vent.  318. 

(p)  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543;  Mestaer  v.  Gillespie,  11  Ves.  621; 
Middleton  v.  Middleton,  1  J.  &  W.  94.  These  cases  proceed  upon  the  ground  of 
concealed  fraud,  by  not  allowing  a  party  to  use  a  mere  technical  advantage  for  the 
accomplishment  of  positive  injustice;  and  in  a  manner  which  the  law  never  con- 
templated. So  that  equity  here  does  not  dispense  with  the  law,  but  merely  supplies 
its  defects. 

(g)  Hovenden  v.  Lord  Annesley,  2  Sch.  &  L.  607;  Talmarsh  v.  MugUston,  4 
L.  J.  0.  S.  Ch.  200;  Masonic  General  Life  Assurance  Co.  v.  Sharpe,  [1892]  1  Ch.  154. 

(r)  Smith  v.  Clay,  3  Bro.  C.  C.  640,  note;  Cholmondeley  v.  Clinton,  2  Jac.  & 
Walk.  156;  4  Bligh.  1. 

(«)  See  Pickering  v.  Lord  Stamford,  2  Ves.  Jun.  279,  582;  Gibbs  v.  Guild,  9 
Q.  B.  D.  59 ;  Oelkers  v.  Ellis,  [1914]  2  K.  B.  139. 


36  EQUITY  JURISPRUDENCE.  [CH.  III. 

of  equity,  the  same  construction  and  effect-  are  given  to  perfect  or 
executed  trust  estates  as  are  given  by  courts  of  law  to  legal  estates. 
The  incidents,  properties,  and  consequences  of  the  estates  are  the 
same.  The  same  restrictions  are  applied  as  to  creating  estates  and 
bounding  perpetuities,  and  giving  absolute  dominion  over  property. 
The  same  modes  of  construing  the  language  and  limitations  of  the 
trusts  are  adopted.  But  there  are  exceptions,  as  vi'ell  known  as  the 
rule  itself.  Thus,  executory  trusts  are  treated  as  susceptible  of  various 
modifications  and  constructions  not  applicable  to  executed  trusts. 
And,  even  at  law,  the  words  in  a  will  are  or  may  be  differently 
construed  when  applied  to  personal  estate,  from  what  they  are  when 
applied  to  real  estate.  In  short,  it  may  be  correctly  said  that  the 
maxim,  that  equity  follows  the  law,  is  a  maxim  liable  to  many 
exceptions ;  and  that  it  cannot  be  generally  affirmed,  that  where  there 
is  no  remedy  at  law  in  the  given  case,  there  is  none  in  equity;  or,  on 
the  other  hand,  that  equity,  in  the  administration  of  its  ovvti 
principles,  is  utterly  regardless  of  the  rules  of  law. 

§  64c.  Another  maxim  is,  that  where  there  is  equal  equity  the 
law  must  prevail.  And  this  is  generally  true ;  for,  in  such  a  case,  the 
defendant  has  an  equal  claim  to  the  protection  of  a  court  of  equity 
for  his  title  as  the  plaintiff  has  to  the  assistance  of  the  court  to 
assert  his  title ;  and  then  the  court  will  not  interpose  on  either 
side,  for  the  rule  there  is,  "  In  aequali  jure  melior  est  conditio 
possidentis. ' '  And  the  equity  is  equal  between  persons  who  have  been 
equally  innocent  and  equally  diligent.  It  is  upon  this  account  that  a 
court  of  equity  constantly  refuses  to  interfere,  either  for  relief  or 
discovery,  against  a  bond  fide  purchaser  of  the  legal  estate  for  a 
valuable  consideration,  without  notice  of  the  adverse  title,  if  he 
chooses  to  avail  himself  of  the  defence  at  the  proper  time  and  in  the 
proper  mode.  And  it  extends  its  protection  equally,  if  the  purchase 
is  originally  of  an  equitable  title  without  notice,  and  afterwards,  with 
notice,  the  party  obtains  or  buys  in  a  prior  legal  title,  in  order  to 
support  his  equitable  title.  This  doctrine  applies  strictly  in  all  cases 
where  the  title  of  the  plaintiff  seeking  relief  is  equitable;  it  is 
inapplicable  to  the  case  of  a  plaintiff  seeking  equitable  relief  based 
upon  a  legal  title  (i).  The  purchaser,  however,  in  all  cases,  must  hold 
a  legal  title,  or  be  entitled  to  call  for  it,  in  order  to  give  him  a  full 
protection  of  his  defence ;  for,  if  his  title  be  merely  equitable,  then  he 
must  yield  to  a  legal  and  equitable  title  in  the  adverse  party.  So,  the 
purchaser  must  have  paid  his  purchase-money  before  notice,  for 
otherwise  he  will  not  be  protected ;  and  if  he  have  paid  a  part  only,  he 
will  be  protected  pro  tanto  only  (u). 

(t)  Collins  v.  Archer,  1  Kuss.  &  M.  284;  Heath  v.  Grealock,  L.  E.  10  Ch.  22;  Ind 
•Coope  d  Go.  V.  Emmerson,  12  App.  Gas.  300. 

(u)  Jackson  v.  Rowe,  i  Euss.  514,  further  proceedings,  9  L.  J.  (O.S.)  Ch.  32. 


§    64c— 64gf.]  GENERAL     VIEW.  37 

§  64d.  But,  even  when  the  title  of  each  party  is  purely  equitable, 
it  does  not  always  follow  that  the  maxim  admits  of  no  preference  of 
the  one  over  the  other.  For,  where  the  equities  are  in  other  respects 
equal,  still  another  maxim  may  prevail,  which  is  "Qui  prior  est  in 
tempore,  potior  est  in  jure  ";  for  precedency  in  time  will,  under  many 
circumstances,  give  an  advantage,  or  priority  in  right.  Hence,  when 
the  legal  estate  is  outstanding,  equitable  incumbrances  on  real  estate 
must  be  paid  according  to  priority  of  time  (x).  But  if  the  legal  estate 
in  personalty  is  outstanding,  the  person  who  first  gives  notice  of  his 
incumbrance  to  the  debtor  or  trustee  will  have  the  preference  (y).  And 
whenever  the  equities  are  unequal,  there  the  preference  is  constantly 
given  to  the  superior  equity. 

§  64e.  Another  maxim  of  no  small  extent  is,  that  he  who  seeks 
equity,  must  do  equity.  This  maxim  principally  applies  to  the 
party  who  is.  seeking  subsiantive  relief,  in  the  character  of  a  plaintiff  in 
the  court  («).  Expectant  heirs  and  reversioners  must  offer  to  repay 
the  sums  actually  received  by  them  together  with  interest  (o);  a 
mortgagor  or  puisne  incumbrancer  must  offer  to  redeem  (b),  and 
many  other  illustrations  of  the  maxim  might  be  put. 

§  64/.  Another  maxim  of  general  use  is,  that  equality  is  equity; 
or,  as  it  is  sometimes  expressed,  equity  delighteth  in  equality.  And 
this  quality,  according  to  Bracton,  constitutes  equity  itself:  "  .^quitas 
est  rerum  convenientia,  qusB  paribus  in  causis  paria  jura  desiderat,  et 
omnia  vere  co-aBquiparat,  et  dicitur  aequitas,  quasi  sequalitas. "  This 
maxim  is  variously  applied ;  as,  for  example,  to  cases  of  contribution 
between  co-eobtractors,  sureties,  and  others;  to  cases  of  abatement 
of  legacies,  where  there  is  a  deficiency  of  assets ;  to  cases  of  appor- 
tionment of  moneys  due  on  incumbrances  among  different  purchasers 
and  claimants  of  different  parcels  of  the  land;  and  especially  to  cases 
of  the  marshalling  and  the  distribution  of  equitable  assets,  which  were 
applied  in  payment  of  debts  proportionally,  without  reference  to  their 
dignity,  or  priority  of  right  at  law,  except  as  regards  Crown  debts. 
And  here  we  have  another  illustration  of  the  doctrine,  that  equity  does 
not  always  follow  the  law. 

§  64^.  Another,  and  the  last,  maxim  which  it  seems  necessary  to 
notice  is,  that  equity  looks  upon  that  as  done,  which  ought  to  have 
been  done.  The  true  meaning  of  this  maxim  is,  that  equity  will  treat 
the  subject-matter,  as  to  collateral  consequences,  and  incidents,  in  the 
same  manner  as  if  the  final  acts  contemplated  by  the  parties  had 

(x)  Phillips  v.  Phillips,  4  De  G.  F.  &  J.  208;  Carritt  v.  Real  and  Personal  Advance 
Co.,  42  Ch.  D.  263. 

(y)  Dearie  v.  Hall,  3  Euss.  1. 

Iz)  Dingle  v.  Cooper,  [1899]  1  Ch.  726 ;  In  re  Lloyd,  Lloyd  v.  Lloyd,  [1903]  1  Ch. 
385 ;  Hanson  v.  Keating,  4  Hare,  1. 

(a)  Croft  v.  Graham:,  2  De  G.  J.  &  S.  71;  Beynon  v.  Cook,  L.  E.  10  Ch.  389. 

(b)  Gordon  v.  Horsefall,  5  Moo.  P.  C.  393;  Inman  v.  Wearing,  3  De  G.  &  S.  729. 


38  EQUITY  JUEISPRUDENCE.  [CH.  III. 

been  executed  exactly  as  they  ought  to  have  been;  not  as  the  parties 
might  have  executed  them.  But  equity  will  not  thus  consider  things 
in  favour  of  all  persons ;  but  only  in  favour  of  such  as  have  a  right  to 
pray  that  the  acts  might  be  done  (c).  And  the  rule  itself  is  not.  in 
other  respects,  of  universal  application;  although  Lord  Hardwieke 
said  that  it  holds  in  every  case  except  in  dower  (d).  The  most  common 
cases  of  the  application  of  the  rule  are  under  agreements.  All  agree- 
ments are  considered  as  performed,  which  are  made  for  a  valuable 
consideration,  in  favour  of  persons  entitled  to  insist  upon  their  per- 
formance. They  are  to  be  considered  as  done  at  the  time  when, 
according  to  the  tenor  thereof,  they  ought  to  have  been  performed. 
They  are  also  deemed  to  have  the  same  consequences  attached  to 
them;  so  that  one  party,  or  his  privies,  shall  not  derive  benefit  by 
his  laches  or  neglect;  and  the  other  party,  for  whose  profit  the 
contract  was  designed,  or  his  privies,  shall  not  sufifer  thereby.  Thus, 
money,  covenanted,  or  devised,  to  be  laid  out  in  land,  is  treated  as 
real  estate  in  equity,  and  descends  to  the  heir.  And,  on  the  other 
hand,  where  land  is  contracted,  or  devised,  to  be  sold,  the  land  is 
considered  and  treated  as  money.  There  are  exceptions  to  the 
doctrine,  where  other  equita-ble  considerations  intervene,  or  where 
the  intent  of  the  parties  leads  the  other  way,  as  where  the  sale  is 
conditional ;  but  these  demonstrate  rather  than  shake  the  potency  of 
the  general  rule. 

(c)  In  re  Austin,  Chetwynd  v.  Morgan,  31  Ch.  D.  596. 
id)  Crabtree  v.  Bramble,  3  Atk.  681. 


§   75,    76.]  ACCIDENT.  39 


CHAPTER    IV. 

CONCURRENT    JURISDICTION    OF    EQUITY — ACCIDENT. 

§  75.  Having  disposed  of  these  matters,  which  may  in  some  sort 
be  deemed  preliminary,  the  next  inquiry  which  will  occupy  our 
attention,  is  to  ascertain  the  true  boundaries  of  the  jurisdiction 
exercised  by  courts  of  equity.  The  subject  here  naturally  divides 
itself  into  three  great  heads, — the  concurrent,  the  exclusive,  and 
the  auxiliary  or  supplemental  jurisdiction  (a).  As  tte  concurrent 
jurisdiction  is  that  which  is  of  the  greatest  extent,  and  most  famiHar 
occurrence  in  practice,  I  propose  to  begin  with  it. 

§  76.  The  concurrent  jurisdiction  of  courts  of  equity  may  be  truly 
said  to  em.brace,  if  not  all,  at  least  a  very  large  portion  of  the  original 
jurisdiction,  inherent  in  the  court  from  its  very  nature,  or  first 
conferred  upon  it,  at  the  dissolution  or  partition  of  the  powers  of  the 
Great  Council,  or  Aula  Regis,  of  the  King.  "We  have  already  seen, 
that  it  did  not  take  its  rise  from  the  introduction  of  technical  uses  or 
trusts,  as  has  sometimes  been  erroneously  supposed  (h).  Its  original 
foundation,  then,  may  be  more  fitly  referred  to  what  Lord  Coke 
deemed  the  true  one, — fraud,  accident,  and  confidence  (c).  In  many 
cases  of  this  sort,  courts  of  common  law,  prior  to  the  Judicature  Act, 
1873,  had  been  accustomed  to  exercise  jurisdiction,  and  to  afford  an 
adequate  remedy.  And  in  many  other  cases,  in  which  anciently  no 
such  remedy  was  allowed,  their  jurisdiction  was  expanded,  so  as 
effectually  to  reach  them.  Still,  however,  there  were  many  cases  of 
fraud,  accident,  and  confidence,  which  either  courts  of  law  did  not 
attempt  to  redress  at  all;  or,  if  they  did,  the  redress  which  they  , 
afforded  was  inadequate  and  defective.  The  concurrent  jurisdiction, 
then,  of  equity,  has  its  true  origin  in  one  of  two  sources :  either  the 
courts  of  law,  although  they  had  general  jurisdiction  in  the  matter, 
could  not  give  adequate,  specific,  and  perfect  relief;  or,  under  the  actual 
circumstances  of  the  case,  they  could  not  give  any  relief  at  all.  The 
former  occurred  in  all  cases,  when  a  simple  judgment  for  the  plaintiff, 
or  for  the  defendant,  did  not  meet  the  full  merits  and  exigencies  of 
the  case;  but  a  variety  of  adjustments,  limitations,  and  cross  claims 

(a)  Ante,  §  42,  43;  1  Cooper's  Public  Eecords,  357. 

(b)  i  Inst.  84 ;  3  Black.  Comm.  431. 

(c)  4  Inst.  84;  3  Black.  Comm.  431,  432. 


40  EQUITY  JUEISPRUDENCE.  [CH.  IV. 

were  to  be  introduced,  and  finally  acted  on;  and  a  decree,  meeting  all 
the  circumstances  of  the  particular  case  between  the  very  parties, 
was  indispensable  to  complete  distributive  justice.  The  latter  occurred, 
when  the  object  sought  was  till  recent  legislation  incapable  of  being 
accomplished  by  the  courts  of  law;  as,  for  instance,  a  perpetual 
injunction,  or  a  preventive  process,  to  restrain  trespasses,  nuisances, 
or  waste.  It  may,  therefore,  be  said,  that  the  concurrent  jurisdiction 
of  equity  extended  to  all  cases  of  legal  rights,  where,  under  the 
circumstances,  there  is  not  a  plain,  adequate,  and  complete  remedy 
at  law. 

§  77.  The  subject,  for  convenience,  may  be  divided  into  two 
branches :  (1)  that,  in  which  the  subject-matter  constituted  the 
principal  (for  it  rarely  constituted  the  sole)  ground  of  the  jurisdiction; 
and  (2)  that,  in  which  the  peculiar  remedies  afforded  by  courts  of 
equity  constituted  the  principal  (although  not  always  the  sole)  ground 
of  the  jurisdiction.  Of  these  we  shall  endeavour  to  treat  successively 
in  their  order,  beginning  with  that  of  the  subject-matter,  where  the 
relief  was  deemed  more  adequate,  complete,  and  perfect  in  equity  than 
at  common  law ;  but  where  the  remedy  was  not,  or,  at  least,  might  not 
be,  of  a  peculiar  and  exclusive  character.  It  is  proper,  however,  to 
add,  that  as  the  grounds  of  jurisdiction  often  run  into  each  other, 
any  attempt  at  a  scientific  method  of  distribution  of  the  various 
heads  would  be  impracticable  and  illusory. 

§  78.  And,  in  the  first  place,  let  us  consider  the  cases,  where  the 
jurisdiction  arises  from  accident.  By  the  term  accident  is  here 
intended,  not  merely  inevitable  casualty,  or  the  act  of  Providence,  or 
what  is  technically  called  vis  major,  or  irresistible  force ;  but  such 
unforeseen  events,  misfortunes,  losses,  acts,  or  omissions,  as  are 
not  the  result  of  any  negligence  or  misconduct  in  the  party.  Lord 
Cowper,  speaking  on  the  subject  of  accident,  as  cognizable  in  equity, 
said :  ' '  By  accident  is  meant  when  a  case  is  distinguished  from  others 
of  the  like  nature  by  unusual  circumstances  "  (d) ;  a  definition  quite 
too  loose  and  inaccurate,  without  some  further  qualifications ;  for  it  is 
entirely  consistent  with  the  language,  that  the  unusual  circumstances 
may  have  resulted  from  the  party's  own  gross  negligence,  folly,  or 
rashness. 

§  79.  The  jurisdiction  of  the  court,  arising  from  accident,  in  the 
general  sense  already  suggested,  is  a  very  old  head  in  equity,  and 
probably  coeval  with  its  existence  (e).  But  it  is  not  every  case  of 
accident  which  will  justify  the  interposition  of  a  court  of  equity  (/). 
The  jurisdiction,  being  concurrent,  will  be  maintained  only,  first, 
when   a   court   of   law    cannot   grant    suitable    relief;    and,    secondly, 

(d)  Earl  of  Bath  v.  Sherwin,  10  Mod.  1. 

(e)  See  East  India  Co.  v.  Boddam,  9  Ves.  464;  Armitage  v.  Wadsworth,  1  Mad. 
189  to  193. 

(/)  Whitfield  V.  Fausset,  1  Ves.  Sen.  392,  393. 


§    77 — 82.]  ACCIDENT.  41 

when  the  party  has  a  conscientious  title  to  relief.  Both  grounds 
naust  concur  in  the  given  case ;  for  otherwise  a  court  of  equity  not 
only  may,  but  is  bound  to  withhold  its  aid.  Mr.  Justice  Blackstone 
has  very  correctly  observed,  that,  "  many  accidents  are  supplied  in  a 
court  of  law ;  as  loss  of  deeds,  mistakes  in  receipts  and  accounts,  wrong 
payments,  deaths,  which  made  it  impossible  to  perform  a  condition 
literally,  and  a  multitude  of  other  contingencies.  And  many  cannot 
be  redressed,  even  in  a  court  of  equity ;  as,  if  by  accident  a  recovery 
is  ill  sufiered,  a  devise  ill  executed,  a  contingent  remainder  destroyed, 
or  a  power  of  leasing  omitted  in  a  family  settlement  (g). 

§  80.  The  first  consideration  then  is,  whether  there  is  an  adequate 
remedy  at  law,  not  merely  whether  there  is  some  remedy  at  law. 
And  here  a  most  material  distinction  is  to  be  attended  to.  In  more 
recent  times,  courts  of  law  frequently  interfered,  and  granted  a 
remedy  under  circumstances  in  which  it  would  certainly  have  been 
denied  in  earlier  periods.  And,  sometimes,  the  legislature,  by  express 
enactments,  conferred  on  courts  of  law  the  same  remedial  faculty 
which  belonged  to  courts  of  equity.  Now  (as  we  have  seen),  in  neither 
case,  if  the  courts  of  equity  originally  obtained  and  exercised 
jurisdiction,  is  that  jurisdiction  overturned  or  impaired  by  this  change 
of  the  authority  at  law  in  regard  to  legislative  enactments ;  for,  unless 
there  are  prohibitory  or  restrictive  words  used,  the  uniform  inter- 
pretation is,  that  they  confer  concurrent  and  not  exclusive  remedial 
authority.  And  it  would  be  still  more  difficult  to  maintain  that  a 
court  of  law,  by  its  own  act,  could  oust  or  repeal  a  jurisdiction  already 
rightfully  attached  in  equity  (h). 

§  81.  One  of  the  most  common  interpositions  of  equity  under  this 
head  was  in  the  case  of  lost  bonds  or  other  instruments  under  seal. 
Originally  the  doctrine  prevailed  that  there  could  be  no  remedy  on  a 
lost  bond  in  a  court  of  common  law,  because  there  could  be  no  profert 
of  the  instrument,  without  which  the  declaration  would  be  fatally 
defective;  but  about  1750  the  court  of  law  commenced  to  entertain 
the  jurisdiction,  and  dispense  with  the  profert,  if  an  allegation  of  loss, 
by  time  and  accident,  was  stated  in  the  declaration  (i).  But  this 
circumstance  was  not  permitted  in  the  slightest  degree  to  change  the 
course  in  equity  (k). 

§  82.  Independent  of  this  general  ground  of  the  former  inability  to 
make  a  proper  profert  of  the  deed  at  law,  there  was  another  satisfactory 
ground  for  the  interference  of  a  court  of  equity.  It  is,  that  no 
other  court  could  furnish  the  same  remedy  with  all  the  fit  limitations 

(g)  3  Black.  Comm.  431. 

{h)  Atkinson  v.  Leonard,  3  Bro.  C.  C.  218;  Bromley  v.  Holland,  7  Ves.  19,  20; 
East  India  Co.  v.  Boddam,  9  Ves.  464. 

(i)  Whitfield  v.  Fausset,  1  Ves.  Sen.  387 ;  Read  v.  Brokman,  3  T.  E.  151. 

(A;)  Atkinson  y. 'Leonard,  3  Bro.  C.  C.  218;  Bromley  v.  Holland,  7  Ves.  3;  East 
India  Go.  v.  Boddam,  9  Ves.  464. 


42  EQUITY  JURISPRUDENCE.  [CH.  IV. 

which  may  be  demanded  for  the  purposes  of  justice,  by  granting  relief 
only  upon  the  terms  of  the  party's  giving  (when  proper)  a  suitable- 
bond  of  indemnity.  Now,  a  court  of  law  was  incompetent  to  require 
such  a  bond  of  indemnity  as  a  part  of  its  judgments,  although  it 
sometimes  attempted  an  analogous  relief  (it  is  difficult  to  understand 
upon  what  ground),  by  requiring  the  previous  offer  of  such  an 
indemnity  (l).  But  such  an  offer  might,  in  many  cases,  fall  far 
short  of  the  just  relief;  for,  in  the  intermediate  time,  there  might  be 
a  great  change  in  the  circumstances  of  the  parties  to  the  bond  of 
indemnity  (m).  In  joint  bonds,  there  are  still  stronger  reasons;  for  the 
equities  may  be  different  between  the  different  defendants  (n).  And, 
besides,  a  court  of  equity,  before  it  would  grant  relief,  would  insist 
that  the  defendant  should  have  the  protection  of  the  oath  and  affidavit 
of  the  plaintiff  to  the  fact  of  the  loss;  thus  requiring,  what  is  most 
essential  to  the  interests  of  justice,  that  the  party  should  pledge  his 
conscience  by  his  oath,  that  the  instrument  was  lost  (o). 

§  84.  It  has  been  remarked  by  Lord  Hardwicke,  that  the  loss  of  a 
deed  is  not  always  a  ground  to  come  into  a  court  of  equity  for  relief; 
for,  if  there  is  no  more  in  the  case,  although  the  party  might  be  entitled 
to  a  discovery  of  the  original  existence  and  validity  of  the  deed,  courts 
of  law  might  afford  just  relief,  since  they  would  admit  evidence  of  the 
loss  and  contents  of  a  deed  (p),  just  as  a  court  of  equitywould  do  (g). 
To  enable  the  party,  therefore,  in  case  of  a  lost  deed,  to  come  into 
equity  for  relief,  he  must  have  established  that  there  was  no  remedy 
at  all  at  law,  or  no  remedy  which  was  adequate,  and  adapted  to  the 
circumstances  of  the  case.  In  the  first  place,  he  might  come  into 
equity  for  payment  of  a  lost  bond;  for  in  such  a  case  his  biU  need 
not  have  been  for  a  discovery  only,  but  might  also  be  for  relief;  since 
the  jurisdiction  attached,  when  there  was  no  remedy  at  law  for  want  of 
a  due  profert  ()■).  In  the  next  place,  he  might  come  into  equity  when 
a  deed  or  will  of  land  had  been  destroyed,  or  was  concealed  by  the 
defendant;  for  then,  as  the  party  could  not  know  which  alternative 
was  correct,  a  court  of  equity  would  make  a  decree  (which  a  court  of 
law  could  not)  that  the  plaintiff  should  hold  and  enjoy  the  land  (s). 
So,  if  a  deed  concerning  land  were  lost,  and  the  party  in  possession 
prayed  discovery,  and  to  be  established  in  his  possession  under  it, 
equity  would  relieve;  for  no  remedy,  in  such  a  case,  lay  at  law  (t). 


(I)  Ex  parte  Greenway,  6  Ves.  812;  Pierson  v.  Hutchinson,  2  Camp.  211;  s.c.  6 
Bsp.  126. 

(m)  East  India  Co.  v.  Boddam,  9  Ves.  464. 

(n)  East  India  Co.  v.  Boddam ,  9  Ves.  464. 

(o)  Bromley  v.  Holland,  7  Ves.  19,  20. 

(p)  Doe  V.  Lewis,  11  G.  B.  1035. 

iq)  Whitfield  v.  Fausset,  X  Ves.  Sen.  392,  393. 

(r)  Williams  v.  Flight,  5  Beav.  41. 

(s)  Dalston  v.  Coatsworth,  1  P.  Wms.  731;  Williams  v.  Williams,  33  Beav.  306. 

it)  Walmsley  v.  Child,  1  Ves.  Sen.  344,  345. 


§    84 86.]  ACCIDENT.  43 

And,  where  the  plaintiff  was  out  of  possession,  there  were  cases  in 
which  equity  would  have  interfered  upon  lost  or  suppressed  title-deeds, 
and  would  have  decreed  possession  to  the  plaintiff;  but  in  all  such 
cases  there  must  have  been  other  equities  calling  for  the  action  of  the 
court.  Indeed,  the  bill  must  always  have  had  some  ground  besides 
the  mere  loss  of  a  title-deed,  or  other  sealed  instrument,  to  justify  a 
prayer  for  relief;  as,  that  the  loss  obstructed  the  right  of  the  plaintiif 
at  law,  or  left  him  exposed  to  undue  perils  in  the  future  assertion  of 
such  right. 

§  85.  By  the  law  merchant,  which  in  this  respect  was  adopted  by 
the  Courts  of  Common  law,  the  payee  or  holder  was  required  to 
produce  and  hand  over  a  negotiable  bill  or  note  (u)  upon  payment  by 
the  acceptor,  and  consequently  there  was  no  remedy  upon  a  lost  bill, 
even  if  an  indemnity  were  offered  {x) ;  nor  could  the  consideration  be 
recovered  under  the  same  circumstances  {y).  The  common  law  was 
subsequently  altered  in  this  respect  by  s.  87  of  the  Common  Law 
Procedure  Act,  1854  (17  &  18  Vict.  c.  125),  a  provision  which  was 
subsequently  repealed  and  re-enacted  in  s.  70  of  the  Bills  of  Exchange 
Act,  1882  (45  &  46  Vict.  c.  61).  In  respect  of  all  other  simple  contracts 
the  Court  of  Chancery  might  not  entertain  jurisdiction  or  decree  pay- 
ment upon  the  mere  fact  of  loss;  for  no  such  supposed  inability  to 
recover  at  law  existed  in  the  last-mentioned  case  as  existed  for  want 
of  a  profert  of  a  bond  at  law.  No  profert  was  necessary,  and  no  oyer 
allowed  at  law  of  such  a  note  or  security;  and  no  recovery  could  be 
had  at  law,  upon  mere  proof  of  the  loss.  But,  then,  a  court  of  law 
could  not,  as  we  have  seen,  insist  upon  an  indemnity,  or  at  least 
could  not  insist  upon  it  in  such  a  form  as  might  operate  as  a  perfect 
indemnity  (z).  Where  a  negotiable  bill  or  note  had  been  lost,  a  court 
of  equity  would  entertain  a  bill  for  relief  and  payment,  upon  an 
offer  in  the  bill  to  give  a  proper  indemnity  under  the  direction  of  the 
court,  and  not  without.  And  such  an  offer  entitled  the  court  to  require 
an  indemnity,  not  strictly  attainable  at  law,  and  founded  a  just 
jurisdiction  (a).  Courts  of  common  law  allowed  an  action  to  be 
maintained  upon  bills  or  notes  proved  to  have  been  destroyed,  and 
consequently  there  existed  no  corresponding  necessity  for  an  equitable 
jurisdiction  to  enable  the  money  to  be  recovered  (b). 

§  86.  In  the  cases  which  we  have  been  considering,  the  lost  note, 
or  other  security,  was  negotiable.  And,  according  to  the  authorities, 
this  circumstance  is  most  material ;  for  otherwise  it  would  seem,  that 
no  indemnity  would  be  necessary  (c),  and  consequently  no  relief  could 

(u)  Wain  v.  Bailey,  10  A.  &  E.  616. 

(x)  Hansard  v.  Robinson,  7  B.  &  C.  90;  Ramuz  v.  Clay,  1  Ex.  167. 

(y)  Crowe  v.  Clay,  9  Ex.  604. 

(z)  See  Hansard  v.  Robinson,  7  B.  &  C.  90. 

(a)  Macartney  v.  Graham,  2  Sim.  796. 

(b)  Wright  v.  Lord  Maidstone,  1  K.  &  J.  701. 

(c)  Wain  v.  BaiUy,  10  A.  &  E.  616. 


44  EQUITY  JURISPRUDENCE.  [CH.  IV. 

be  had  in  equity  (d).  The  propriety  of  this  exception  has  been  some- 
what doubted;  for  the  party  is  entitled,  upon  payment  of  such  a  note 
or  security,  to  have  it  delivered  up  to  him,  as  voucher  of  the  payment 
and  extinguishment  of  it;  and  it  may  have  been  assigned,  in  equity, 
.or  under  the  provisions  of  s.  25,  sub-s.  6  of  the  Judicature  Act,  1873 
(36  &  37  Vict.  c.  66),  to  a  third  person.  And  although,  in  such  a  case, 
the  assignee  would  be  affected  by  all  the  equities  between  the  original 
parties,  yet  the  promisor  may  not  always,  after  a  great  length  of  time, 
be  able  to  establish  those  equities  by  competent  proof;  and,  at  all 
events,  he  may  be  put  to  serious  expense  and  trouble,  to  establish  his 
exoneration  from  the  charge.  The  jurisdiction  of  courts  of  equity, 
under  such  circumstances,  seems  perfectly  within  the  principles  on 
which  such  courts  ordinarily  proceed  to  grant  relief,  not  only  in  cases 
of  absolute  loss,  but  of  impending  or  probable  mischief  or  inconvenience. 
And  a  bond  of  indemnity,  under  such  circumstances,  is  but  a  just 
security  to  the  promisor  against  the  vexation  and  accumulated 
expenses  of  a  suit  (e). 

§  87.  It  is  upon  grounds  somewhat  similar,  that  courts  of  equity 
often  interfere,  where  the  party,  from  the  long  possession  or  exercise 
of  a  right  over  property,  may  fairly  be  presumed  to  have  had  a  legal 
title  to  it,  and  yet  has  lost  the  legal  evidence  of  it,  or  is  now  unable 
to  produce  it.  Under  such  circumstances,  equity  acts  upon  the 
presumption,  arising  from  such  possession,  as  equivalent  to  complete 
proof  of  the  legal  right.  Thus,  where  a  rent  has  been  received  and 
paid  for  a  long  time,  equity  will  enforce  the  payment,  although  no 
deed  can  be  produced  to  sustain  the  claim;  or.  the  precise  lands,  out 
of  which  it  is  payable,  cannot,  from  confusion  of  boundaries,  or  other 
accident,  be  now  ascertained  (/). 

§  88.  In  the  cases  of  supposed  lost  instruments,  where  relief  was 
sought,  it  was  indispensable,  that  the  loss,  if  not  admitted  by  the 
answer  of  the  defendant,  should  be  established  by  competent  and 
satisfactory  proofs  {g).  For  the  very  foundation  of  the  suit  in  equity 
rested  upon  this  most  material  fact.  If,  therefore,  the  plaintiff  should 
fail,  at  the  hearing,  to  establish  the  loss  of  the  instrument,  or  the 
defendant  should  overcome  the  plaintiff's  proofs  by  countervailing 
testimony  of  its  existence,  the  suit  would  be  dismissed,  and  the 
plaintiff  remitted  to  the  legal  forum.  But  if  the  loss  were  sufficiently 
established,  when  it  was  denied  by  the  defendant's  answer,  the  plaintiff 
would  be  entitled  to  relief,  although  he  might  have  other  evidence, 
competent  and  sufficient  to  establish  the  existence  and  contents  of 

(d)  See  Wright  v.  Lord  Maidstone,  1  K.  &  J.  701. 

(e)  See  Hansard  v.  Robinson,  7  B.  &  C.  90;  East  India  Co.  v.  Boddam,  9  Ves. 
468,  469 ;  Davies  v.  Dodd,  4  Price,  176 ;  Story  on  Bills,  §  106  to  116,  243  to  245,  445. 

(/)  Duke  of  Leeds  v.  New  Radnor,  2  Bro.  C.  C.  338,  518;  Searle  v.  Cooke,  43 
Ch.  D.  519. 

(g)  East  India  Co.  v.  Boddam,  9  Ves.  466;  Green  v.  Bailey,  15  Sim.  542;  Bell  v. 
Alexander,  6  Hare,  543. 


§    87 — 89.]  ACCIDENT.  45 

the  instrument,  of  which  he  might  have  availed  himself  in  a  court  of 
law.  For  if  the  jurisdiction  once  attached  by  the  loss  of  the  instrument, 
a  court  of  equity  would  not  drive  the  party  to  the  hazard*of  a  trial 
at  law,  when  the  case  was  fit  for  its  own  interposition,  and  final  action 
upon  a  claim  to  sift  the  conscience  of  the  party  by  a  discovery.  Under 
the  practice  introduced  by  s.  24,  sub-s.  7  of  the  Judicature  Act,  1873 
(36  &  87  Vict.  c.  66),  the  jurisdiction  could  be  exercised  in  any  division 
in  which  a  lost  or  destroyed  instrument  was  the  foundation  of  the 
action  (h). 

§  89.  We  have  thus  far  been  considering  cases  of  accident,  founded 
upon  lost  instruments.  But  there  are  many  other  cases  of  accident, 
where  courts  of  equity  will  grant  relief.  One  of  the  earliest  cases  in 
which  they  were  accustomed  to  int-erfere,  was,  where  by  accident  a 
bond  had  not  been  paid  at  the  appointed  day,  and  it  was  subsequently 
sued ;  or  where  a  part  only  had  been  paid  at  the  day  (i).  This  jurisdic- 
tion was  afterwards  greatly  enlarged  in  its  operation,  and  applied  to 
all  cases,  where  relief  was  sought  against  the  penalty  of  a  bond,  upon 
the  ground  that  it  was  unjust  for  the  party  to  avail  himself  of  the 
penalty,  when  an  offer  of  full  indemnity  is  tendered.  The  same 
principle  governs  in  the  case  of  mortgages,  where  courts  of  equity  con- 
stantly allow  a  redemption,  although  there  is  a  forfeiture  at  law  (fe). 
The  learned  author  here  added  the  expression  of  his  opinion  that,  as 
a  general  proposition,  it  was  correct  to  say,  "  where  an  inequitable 
loss  or  injury  will  otherwise  fall  upon  a  party  from  circumstances; 
beyond  his  control,  or  from  his  own  acts  done  in  entire  good  faith, 
and  in  the  performance  of  a  supposed  duty,  without  negligence,  courts- 
of  equity  will  interfere  to  grant  him  relief. ' '  The  cases  cited  do  not 
warrant  any  pronouncement  of  this  character,  and  there  is  ample 
authority  negativing  any  such  proposition.  Where  a  personal  repre- 
sentative paid  a  simple  contract  debt  in  ignorance  and  without  notice 
of  the  existence  of  a  judgment  debt,  it  was  regarded  as  a  devastavit  in 
a  court  of  equity  as  well  as  in  a  court  of  law  (l).  If  a  person  "  in  entire 
good  faith,  and  in  the  performance  of  a  supposed  duty  ' '  of  maintaining 
the  rights  of  himself  or  of  the  public,  committed  a  trespass,  not  only 
would  a  court  of  equity  not ' '  interfere  to  grant  him  relief, ' '  but  it  would 
grant  an  injunction  to  restrain  him  from  repeating  the  tortious  act  (m). 
There  is  a  statutory  power  to  order  the  return  of  a  portion  of  the 
premium  in  the  event  of  the  bankruptcy  of  the  master  under  section  34 
of  the  Bankruptcy  Act,  1914  (4  &  5  Geo.  V.  c.  59),  but  there  is  no  other 
authority  to  do  so  except  in  the  event  of  misconduct  on  the  part  of 
the  master,  and  the  existence  of  an  exceptional  jurisdiction  where  the 

(h)  See  King  v.  Zimmerman,  L  E..  6  C.  P.  466. 

(i)  Sloman  v.  Walter,  1  Bro.  C.  C.  418. 

(fc)  Seton  V.  Slade,  7  Ves.  273,  274;  post,  §  1313,  1314,  1316. 

(0  Fuller  V.  Redman  {No.  1),  26  Beav.  600. 

(m)  Robertson  v.  Hartopp,  43  Ch.  D.  484;  Bourke  v.  Davis,  44  Ch.  D.  110. 


46  EQUITY  JURISPRUDENCE.  [CH.  IV. 

master  is  a  solicitor,  and  consequently  an  officer  of  the  court,  has  been 
disclaimed  (o).  So  the  right  to  a  return  of  the  premium  paid  upon 
entering  ilito  partnership  in  the  case  of  dissolution  before  the  agreed 
termination,  depended  upon  the  misconduct  of  the  recipient,  or 
unfair  dealing  on  his  part,  and  this  is  in  substance  adopted  in  the 
Partnership  Act,  1890  (53  &  54  Vict.  c.  39),  s.  40  (p).  So  where  a  gift 
is  liable  to  be  defeated  by  the  terms  of  a  gift  over  there  can  be  no 
relief  where  the  legatee  fails  to  perform  the  condition,  although  he  is 
ignorant  of  its  terms,  unless  his  conduct  has  been  induced  by  the  fraud 
or  overreaching  of  the  party  entitled  under  the  terms  of  the  gift 
over  (g). 

§  94.  In  the  execution  of  mere  powers,  it  has  been  said  that  a 
court  of  equity  will  interpose,  and  grant  relief  on  account  of  accident, 
as  well  as  of  mistake.  And  this  seems  regularly  true,  where,  by 
accident,  there  is  a  defective  execution  of  the  power  (r).  And  it  is 
now  settled  that  a  non-execution  of  a  power  will  not  be  aided  unless 
the  execution  has  been  prevented  by  fraud  (s). 

§  95.  In  regard  to  the  defective  execution  of  powers,  resulting 
either  from  accident  or  mistake,  or  both,  and  also  in  regard  to  agree- 
ments to  execute  powers  (which  may  generally  be  deemed  a  species 
of  defective  execution),  courts  of  equity  do  not  in  all  cases  interfere 
and  grant  relief ;  but  grant  it  only  in  favour  of  persons,  in  a  moral 
■sense  entitled  to  the  same,  and  viewed  with  peculiar  favour,  and 
where  there  are  no  opposing  equities  on  the  other  side.  Without 
undertaking  to  enumerate  all  the  qualifications  of  doctrine  belonging 
tio  this  intricate  subject,  it  may  be  stated,  that  courts  of  equity,  in 
cases  of  defective  execution  of  powers,  will  (unless  there  be  some 
countervailing  quality)  interpose,  and  grant  relief  in  favour  of  pur- 
.chasers,  creditors,  a  wife,  a  legitimate  child,  and  a  charity ;  but  not  in 
favour  of  the  donee  of  the  power,  or  a  husband,  or  grandchildren,  or 
remote  relations,  or  strangers  (including  an  illegitimate  child) 
generally  (t). 

§  96.  But  in  cases  of  defective  execution  of  powers  we  are  care- 
fully to  distinguish  between  powers  which  are  created  bj'  private 
parties,  and  those  which  are  specially  created  by  statute;  as,  for 
instance,  powers  of  tenants  for  life  or  in  tail  to  make  leases.  What- 
ever formalities  are  required  by  the  statute  must  be  punctually 
complied  with,  where  they  constitute  the  apparent  policy  and  object 

(o)  Craven  v.  Stubbins,  34  L.  J.  Ch.  126;  Ferns  v.  Can,  28  Ch.  D.  409. 

(p)  Atwood  v.  Maude,  L.  E.  3  Ch.  369;  Wilson  v.  Johnstone,  L.  E.  16  Eq.  606; 
Belfi-eld  v.  Bourne,  [1894]  1  Ch.  521. 

iq)  In  re  Lewis;  Lewis  v.  Lewis,  [1904]  2  Ch.  656. 

(r)  Sugd.  Powers,  530,  8th  ed. 

is)  Toilet  V.  Toilet,  2  P.  Wins.  489;  In  re  Weekes'  Settlement,  [1897]  1  Ch.  289. 
See  Sugd.  Powers,  574,  575,  8th  ed. 

(t)  Sugd.  Powers,  530,  8th  ed. 


§    94—98.]  ACCIDENT.  47 

of  the  statute  {u).  In  Shannon  v.  Bradstreet  (x),  Lord  Eedeedale 
held  that  a  defective  appointment  of  a  tenant  for  life  under  a  power 
of  leasing  would  be  aided  in  equity  as  against  the  remainderman.  This, 
principle  has  been  adopted  and  extended  by  the  12  &  13  Vict.  c.  26, 
ajid  13  &  14  Vict.  c.  17,  whereby,  in  the  ease  of  leases  granted  in 
exercise  of  powers  (including  statutory  powers),  the  lease  may  be 
validated  in  favour  of  lessee,  and  also  of  reversioners,  notwithstanding 
the  non-observance  or  omission  of  some  condition  or  restriction,  or  by 
reason  of  any  other  deviation  from  the  terms  of  such  power  (y). 

§  97.  But  as  to  the  defects  which  may  be  remedied,  they  may 
generally  be  said  to  be  any  which  are  not  of  the  very  essence  or  sub- 
stance of  the  power.  Thus,  a  defect  by  executing  the  power  by  will, 
when  it  is  required  to  be  by  a  deed,  or  other  instrument,  inter  vivos, 
will  be  aided  («).  So,  the  want  of  a  seal,  or  of  witnesses,  or  of  both  (a), 
and  defects  in  the  limitations  of  the  property,  estate,  or  interest  (b), 
will  be  aided.  And,  perhaps,  the  same  rule  will  apply  to  defective 
executions  of  powers  by  femes  covert.  But  equity  will  not  aid  defects 
which  are  of  the  very  essence  or  substance  of  the  power ;  as,  for 
instance,  if  the  power  be  executed  without  the  consent  of  parties  who 
are  required  to  consent  to  it  (c).  So,  if  it  be  required  to  be  executed  by 
will,  and  it  is  executed  by  an  irrevocable  and  absolute  deed;  for  this 
is  apparently  contrary  to  the  settler's  intention,  a  will  being  always 
revocable  during  the  life  of  the  testator;  whereas,  a  deed  would  not 
be  revocable  unless  expressly  so  stated  in  it  (d). 

§  98.  But  a  class  of  cases  more  common  in  their  occurrence,  as 
well  as  more  extensive  in  their  operation,  will  be  found,  where  trusts, 
or  powers  in  the  nature  of  trusts,  are  required  to  be  executed  by  the 
trustee  in  favour  of  particular  persons,  and  they  fail  of  being  so  exe- 
cuted by  casualty  or  accident.  In  all  such  cases  equity  will  interpose, 
and  grant  suitable  relief.  Thus,  for  instance,  if  a  testator  should,  by 
his  will,  devise  certain  estates  to  A.,  with  directions,  that  A.  should, 
at  his  death,  distribute  the  same  among  his  children  and  relations  as 
he  should  choose,  and  A.  should  die  without  making  such  a  distribu- 
tion, a  court  of  equity  would  interfere,  and  make  a  suitable  distribution ; 
because  it  is  not  given  to  the  devisee  as  a  mere  power,  but  as  a  trust 
and  duty  which  he  ought  to  fulfil;  and  his  omission  so  to  do  by 
accident,  or  design,  ought  not  to  disappoint  the  objects  of  the  bounty. 

(u)  Earl  of  Darlington  v.  Pulteney,  Cowp.  267;  In  re  Kirwan's  Trusts,  25  Ch.  D. 
373;  In  re  Barnett;  Dawes  v.  Ixer,  [1908]  1  Ch.  402. 
(x)  1  Sch.  &  L.  52. 

(y)  Exp.  Cooper,  In  re  L.  d  N.  W.  By.,  34  L.  J.  Ch.  373. 
(z)  Toilet  V.  Toilet,  2  P.  Wms.  489. 

(a)  Kennard  v.  Kennard,  L.  E.  6  Ch.  227. 

(b)  Daniel  v.  Arkwright,  2  H.  &  M.  95. 

(c)  Sympson  v.  Hornsby,  Prec.  Ch.  452. 

(d)  In  re  Jackson's  Will,  13  Ch.  D.  189;  In  re  Flower;  Edmonds  v.  Edmonds, 
55  L.  J.  Ch.  200. 


48  EQUITY  JDEISPKUBENCE.  [CH.  IV. 

It  would  be  very  difierent  if  the  case  were  of  a  mere  naked  power, 
and  not  a  power  coupled  with  a  trust  (e). 

§  99.  Another  class  of  cases  is,  where  a  testator  cancels  a  former 
will  upon  the  presumption  that  a  later  will  made  by  him  is  duly 
executed  when  it  is  not.  In  such  a  case  it  has  been  decided  that  the 
former  will  shall  be  set  up  against  the  heir  in  a  court  of  equity,  and 
the  devisee  be  relieved  there,  upon  the  ground  of  accident  (/).  But 
it  is  doubtful  if  this  principle  would  be  followed  at  the  present  day, 
at  any  rate  to  the  full  extent  (g). 

§  100.  These  may  suffice,  as  illustrations  of  the  general  doctrine  of 
relief  in  equity  in  eases  of  accident.  They  all  proceed  upon  the  same 
common  foundation,  that  there  is  no  adequate  or  complete  remedy  at 
law  under  all  the  circumstances ;  that  the  party  has  rights  which  ought 
to  be  protected  and  enforced ;  ot  that  he  will  sustain  some  injury,  loss, 
or  detriment,  which  it  would  be  inequitable  to  throw  upon  him. 

§  101.  And  this  leads  us,  naturally,  to  the  consideration  of  those 
cases  of  accident,  in  which  no  relief  will  be  granted  by  epurts  of 
equity.  In  the  first  place,  in  matters  of  positive  contract  and  obliga- 
tion, created  by  the  party  (for  it  is  different  in  obligations  or  duties 
created  by  law)  (k),  it  is  no  ground  for  the  interference  of  equity,  that 
the  party  has  been  prevented  from  fulfilling  them  by  accident;  or, 
that  he  has  been  in  no  default;  or,  that  he  has  been  prevented  by 
accident  from  deriving  the  full  benefit  of  the  contract  on  his  own 
side  {i).  Thus,  if  a  lessee  on  a  demise  covenants  to  keep  the  demised 
estate  in  repair,  he  will  be  bound  in  equity  as  well  as  in  law  to  do  so, 
notwithstanding  any  inevitable  accident  or  necessity  by  which  the 
premises  are  destroyed  or  injured;  as  if  they  are  burnt  by  lightning, 
or  destroyed  by  public  enemies,  or  by  any  other  accident,  or  by  over- 
whelming force.  The  reason  is,  that  he  might  have  provided  for  such 
contingencies  by  his  contract,  if  he  had  so  chosen;  and  the  law  will 
presume  the  intentional  general  liability,  where  he  has  made  no 
exception  (k). 

§  102.  And  the  same  rule  applies  in  like  cases,  where  there  is  an 
express  covenant  (without  any  proper  exception)  to  pay  rent  during 
the  term.  It  must  be  paid,  notwithstanding  the  premises  are  acci- 
dentally burnt  down  during  the  term.  And  this  is  equally  true  as  to 
the  rent,  although  the  tenant  has  covenanted  to  repair,  except  in 
cases  of  casualties  by  fire,  and  the  premises  are  burnt  down  by  such 


(e)  Harding  v.  Glyn,  1  Atk.  469,  and  note  by  Saunders;  Brown  v.  Higgs,  4  Ves. 
709;  5  "Ves.  495;  8  Ves.  561. 

(/)  Onions  v.  Tyrer,  1  P.  Will.  343. 

(g)  See  Woodward  v.  Goulstone,  11  App.  Gas.  469. 

ill)  Paradine  v.  Jane,  Aleyn  27.     See  also  Story  on  Bailments,  §  25,  35,  36. 

(t)  Berrisford  v.  Done,  1  Vern.  98;  Paine  v.  Miller,  6  Ves.  349;  Rayner  v. 
Preston,  18  Ch.  D.  1. 

(k)  Pym  V.  Blackburn,  3  Ves.  34. 


§    99—108.]  ACCIDENT.  49 

casualty;  for,  Expressio  unius  est  exclusio  alterius  (I).  In  all  eases  of 
this  sort  of  accidental  loss  by  fire,  the  rule  prevails,  Res  pent  domino; 
and,  therefore,  the  tenant  and  landlord  suffer  according  to  their  pro- 
portions of  interest  in  the  property  burnt ;  the  tenant  during  the 
term,   and  the  landlord  for  the  residue. 

§  103.  And  the  like  doctrine  applies  to  other  eases  of  contract, 
where  the  pafties  stand  equally  innocent  (m).  Thus,  for  instance,  if 
there  is  a  contract  for  a  sale  at  a  price  to  be  fixed  by  an  award  of 
third  parties,  one  of  whom  dies  before  the  award  is  made,  the  contract 
fails,  and  equity  will  not  enforce  it  upon  the  ground  of  accident;  for 
there  is  no  equity  to  substitute  a  different  method  of  ascertaining  the 
value  (n). 

§  104.  So,  if  A.  should  covenant  with  B.  to  convey  an  estate  for 
two  lives  in  a  church  lease  to  B.  by  a  certain  day,  and  one  of  the  lives 
should  afterwards  drop  in  before  the  day  appointed  for  the  conveyance, 
B.  would  be  compelled  to  stand  by  his  contract,  and  to  accept  the 
conveyance;  for  neither  party  is  in  any  fault;  and  B.,  by  the  contract, 
took  upon  himself  the  risk  by  not  providing  for  the  accident  (o).  So, 
if  an  estate  should  be  sold  by  A.  to  B.,  for  a  certain  sum  of  money 
and  an  annuity,  and  thte  agreement  should  be  fair,  equity  will  not 
grant  relief,  although  the  party  should  die  before  the  payment  of  any 
annuity  (p). 

§  105.  Courts  of  equity  will  not  grant  rehef  to  a  party  upon  the 
ground  of  accident  where  the  accident  has  arisen  from  his  own  gross 
negligence  or  fault;  for  in  such  a  case  the  party  has  nt>  claim  to  come 
into  a  court  of  justice  to  ask  to  be  saved  from  his  own  culpable  mis- 
conduct. And,  on  this  account,  in  general,  a  party  coming  into  a  court 
of  equity  is  bound  to  show  that  his  title  to  relief  is  unmixed  with  any 
gross  misconduct  or  negligence  of  himself  or  his  agents  (g). 

§  106.  In  the  next  place,  no  relief  will  be  granted  on  account  of 
accident,  where  the  other  party  stands  upon  an  equal  equity,  and  is 
entitled  to  equal  protection.  Upon  this  ground,  also,  equity  will  not 
interfere  to  give  effect  to  an  imperfect  will  against  an  innocent  heir- 
at-law;  for,  as  heir,  he  is  entitled  to  protection,  whatever  might  have 
been  the  intent  of  the  testator,  unless  his  title  is  taken  away  according 
to  the  rules  of  law. 

§  108.  And,  generally,  against  a  bond  fide  purchaser,  for  a  valuable 
consideration,  without  notice,  a  court  of  equity  will  not  interfere  on 
the  ground  of  accident;  for,  in  the  view  of  a  court  of  equity,  such  a 
purchaser  has  as  high  a   claim  to  assistance  and  protection  as  any 

(0  Holtzapffell  v.  Baker,  18  Vee.  115. 
(m)  Com.  Dig.  Chancery,  3  F.  5. 

(n)  Milnes  v.  Gery,  14  Ves.  400;  Scott  v.  Avery,  5  H.  L.  C.  811. 
(o)  White  V.  Nutt,  1  P.  Wms.  61. 

(p)  Mortimer  v.  Capper,  1  Bro.  C.  C.  156;  Kenney  v.  Wrexham,  6  Mad.  355. 
(q)  See  Counter  v.  Macpherson,  5  Moo.  P.  C.  83;  In  re  Home;  Wilson  v.  Cox 
Sinclair,  [1905]  1  Ch.  76. 

E.J.  4 


50  EQUITY  JURISPRUDENCE.  [CH.  IV. 

other  person  can  have.  Principles  of  an  analogous  nature  seem  to 
have  governed  in  many  of  the  cases  in  which  the  want  of  a  surrender 
of  copyhold  has  been  supplied  by  courts  of  equity. 

§  109.  Perhaps,  upon  a  general  survey  of  the  grounds  of  equitable 
jurisdiction  in  cases  of  accident,  it  will  be  found  that  they  resolve 
themselves  into  the  following:  that  the  party  seeking  relief  has  a 
clear  right,  which  cannot  otherwise  be  enforced  in  a  suitable  manner; 
or,  that  he  will  be  subjected  to  an  unjustifiable  loss,  without  any 
blame  or  misconduct  on  his  own  part;  or,  that  he  has  a  superior 
equity  to  the  party  from  whom  he  seeks  the  relief. 


§    109 111.]  MISTAKE.  51 


CHAPTER    V. 

MISTAKE. 

§  110.  We  may  next  pass  to  the  consideration  of  the  jurisdiction, 
of  the  courts  of  equity,  founded  upon  the  ground  of  mistake.  This 
is  sometimes  the  result  of  accident,  in  its  large  sense;  but,  as  contra- 
distinguished from  it,  it  is  some  unintentional  act,  or  omission,  or 
error,  arising  from  ignorance,  surprise,  imposition,  or  misplaced  con- 
fidence. Mistakes  are  ordinarily  divided  into  two  sorts :  mistakes  in 
matter  of  law,  and  mistakes  in  matter  of  fact. 

§  111.  And  first,  in  regard  to  mistakes  in  matter  of  law.  It  is  a 
well-known  maxim,  that  ignorance  of  law  will  not  furnish  an  excuse 
for  any  person,  either  for  a  breach,  or  for  an  omission  of  duty; 
Ignorantia  legis  neminem  excused;  and  this  maxim  is  generally  as 
much  respected  in  equity  as  in  law  (a),  but  in  matters  of  purely  equit- 
able jurisdiction,  the  rule  is  not  so  strictly  applied,  for  there  the  line 
has  not  been  drawn  so  strictly  between  mistakes  of  law  and  mistakes 
of  fact  (b).  It  probably  belongs  to  some  of  the  earliest  rudiments  of 
English  jurisprudence ;  and  is  certainly  so  old,  as  to  have  been  long 
laid  up  among  its  settled  elements.  We  find  it  Stated  with  great  clear- 
ness and  force  in  the  Doctor  and  Student,  where  it  is  affirmed,  that 
every  man  is  bound  at  his  peril  to  take  knowledge  what  the  law  of  the 
realm  is;  as  well  the  law  made  by  statute,  as  the  common  law  (c). 
The  probable  ground  for  the  maxim  is  that  suggested  by  Lord  Ellen- 
borough,  that  otherwise  there  is  no  saying  to  what  extent  the  excuse 
of  ignorance  might  not  be  carried  (d).  Indeed,  one  of  the  remarkable 
tendencies  of  the  English  common  law  upon  all  subjects  of  a  general 
nature  is,  to  aim  at  practical  good,  rather  than  theoretical  perfection ; 
and  to  seek  less  to  administer  justice  in  all  possible  cases  than  to^ 
furnish  rules  which  shall  secure  it  in  the  common  course  of  human 
business.  If,  upon  the  mere  ground  of  ignorance  of  the  law,  men  were 
admitted  to  overhaul  or  extinguish  their  most  solemn  contracts,  and 
especially  those  which  have  been  executed  by  a  complete  performance, 

(o)  Goodman  v.  Sayers,  2  J.  &  W.  263;  Bate  v.  Hooper,  5  De  G.  M.  &  G.  338; 
In  re  Sharp ;  Bickett  v.  Bickett,  [1906]  1  Ch.  793. 

(b)  Dibbs  V.  Goren,  11  Beav.  483;  Daniell  v.  Sinclair,  6  App.  Cas.  181. 

(c)  Doct.  &  Stud.  Dial.  2,  ch.  46. 

(d)  Bilbie  v.  Lumley,  2  East  469,  472. 


52  EQUITY  JURISPRUDENCE.  [CH.  V. 

there  would  be  much  embarrassing  litigation  in  all  judicial  tribunals, 
and  no  small  danger  of  injustice,  from  the  nature  and  difficulty  of  the 
proper  proofs.  The  presumption  is,  that  every  person  is  acquainted 
with  his  own  rights,  provided  he  has  had  a  reasonable  opportunity  to 
know  them.  And  nothing  can  be  more  liable  to  abuse,  than  to  permit 
a  person  to  reclaim  his  property  upon  the  mere  pretence,  that  at  the 
time  of  parting  with  it,  he  was  ignorant  of  the  law  acting  on  his  title. 
Mr.  Fonblanque  has  accordingly  laid  it  down  as  a  general  proposition, 
that  in  courts  of  equity  ignorance  of  the  law  shall  not  affect  agree- 
ments, nor  excuse  from  the  legal  consequences  of  particular  acts  (e). 
And  he  is  fully  borne  out  by  authorities  (/).  The  rule  is,  however, 
restricted  to  matters  of  general  law,  and  not  to  matters  of  private 
right  (g).  The  ordinary  rule  as  between  litigant  parties,  that  money 
paid  under  a  mistake  of  law  cannot  be  recovered,  does  not  apply  to  a 
payment  made  under  mistake  to  the  trustee  in  a  bankruptcy  liquidator 
or  other  officer  of  the  court  (h). 

112.  One  of  the  most  common  cases,  put  to  illustrate  the  doctrine 
is,  where  two  are  bound  by  a  bond,  and  the  obligee  releases  one, 
supposing,  by  a  mistake  of  law,  that  the  other  will  remain  bound. 
In  such  a  case  the  obligee  will  not  be  relieved  in  equity  upon  the 
mere  ground  of  his  mistake  of  the  law ;  for  there  is  nothing  inequitable 
in  the  co-obligor's  availing  himself  of  his  legal  rights,  nor  of  the  other 
obligor's  insisting  upon  his  release,  if  they  have  both  acted  bona 
fide,  and  there  has  been  no  fraud  or  imposition  on  their  side  to 
procure  the  release  (f).  So,  where  a  party  had  a  power  of  appointment, 
and  executed  it  absolutely,  without  introducing  a  power  of  revocation, 
upon  a  mistake  of  law,  that  being  a  voluntary  deed,  it  was  revocable, 
relief  was  in  like  manner  denied  (fe).  If  the  power  of  revocation  had 
been  intended  to  be  put  into  the  appointment,  and  omitted  by  a 
mistake  in  the  draft,  it  would  have  been  a  very  different  matt-er  (I). 

§  113.  The  same  principle  applies  to  agreements  entered  into  in 
good  faith,  but  under  a  mistake  of  the  law.  They  are  generally  held 
valid  and  obligatory  upon  the  parties  {ni).  Thus,  where  a  clause  con- 
taining a  power  of  redemption,  in  a  deed  granting  an  annuity,  after 


(e)  1  Fonbl.  Bq.  B.  1,  ch.  2,  §  7,  note  (b) ;  1  Mad.  Ch.  Pr.  60;  Eep.  364;  1  Ves. 
127. 

(/)  Goodman  v.  Sayers,  2  J.  &  W.  263;  Bate  v.  Hooper,  S,  De  G.  M.  &  G.  338; 
In  re  Sharp;  Rickett  v.  Rickett,  [1906]  1  Ch.  793. 

(g)  Cooper  v.  Phibbs,  L.  R.  2  H.  L.  170;  and  of.  Fountaine  v.  Carmarthen  Ry., 
Jj.  E.  5  Eq.  316,  with  In  re  County  Life  Assurance,  L.  K.  5  Ch.  288. 

(h)  Ex  parte  Simmonds,  In  re  Camiac,  16  Q.  B.  D.  308;  In  re  Brown;  Dixon  v. 
Brown,  32  Ch.  D.  597;  In  re  Opera,  Limited  (1891),  2  Ch.  154. 

(i)  Com.  Dig.  Chancery,  3  F.  8;  Harmon  v.  Cannon,  4  "Vin.  Abridg.  387,  pi.  3; 
Cann  v.  Gann,  1  P.  Will.  723.  And  see  Ex  parte  Gifjord,  6  Ves.  805,  as  explained 
in  Kearsley  v.  Cole,  16  M.  &  W.  128. 

(k)  Worrall  v.  Jacob,  3  Meriv.  256. 

(/)  See  Wright  v.  .Goff,  22  Beav.  207 ;  Daniel  v.  Arkwright,  2  H.  &  M.  95. 

(m)  Powell  V.  Smith,  L.  E.  14  Eq.  85. 


§    112—116.]  MISTAKE.  53 

it  had  been  agreed  to,  was  deliberately  excluded  by  the  parties  upon 
a  mistake  of  law,  that  it  would  render  the  contract  usurious ;  the 
Court  of  Chancery  refused  to  restore  the  clause,  or  to  grant  relief  (n). 
Lord  Eldon,  in  commenting  on  this  case,  said  that  it  went  upon  an 
undisputable  clear  principle,  that  the  parties  did  not  mean  to  insert 
in  the  agreement  a  provision  for  redemption,  because  they  were  all 
of  one  mind  that  it  would  be  ruinous.  And  they  desired  the  court 
to  do,  not  what  they  intended,  for  the  insertion  of  that  provision  was 
directly  contrary  to  their  intention;  but  they  desired  to  be  put  in 
the  same  situation,  as  if  they  had  been  better  informed,  and  conse- 
quently had  a  contrary  intention  (o).  So,  where  a  devise  was  given 
upon  condition  that  a  woman  should  marry  with  the  consent  of  her 
parents,  and  she  married  without  such  consent,  whereby  a  forfeiture 
accrued  to  other  parties,  who  afterwards  executed  an  agreement  re- 
specting the  estate,  whereby  the  forfeiture  was  in  effect  waived,  the 
court  refused  any  relief,  although  it  was  contended,  that  it  was  upon 
a  mistake  of  law.  Lord  Hardwicke,  on  that  occasion,  said :  "It  is 
said,  they  [the  parties]  might  know  the  fact,  and  yet  not  know  the 
consequence  of  law.  But  if  parties  are  entering  into  an  agreement, 
and  the  very  will,  out  of  which  the  forfeiture  arose,  is  lying  before 
them  and  their  counsel,  while  the  drafts  are  preparing,  the  parties 
shall  be  supposed  to  be  acquainted  with  the  consequence  of  law  as  to 
this  point;  and  shall  not  be  relieved  on  a  pretence  of  being  surprised, 
with  such  strong  circumstances  attending  it"   (p). 

§  116.  In  the  preceding  section  (q)  it  has  been  stated,  that  agree- 
ments made  and  acts  done  under  a  mistake  of  law  are  (if  not  otherwise 
objectionable)  generally  held  valid  and  obligatory.  The  doctrine  is 
laid  down  in  this  guarded  and  qualified  manner,  because  it  is  not  to 
be  disguised,  that  there  are  authorities,  which  are  supposed  to  con- 
tradict it,  or  at  least  to  form  exceptions  to  it.  Indeed,  in  one  case, 
Lord  King  is  reported  to  have  said,  that  the  maxim  of  law,  Igno- 
rrnitia  juris  non  excusat,  was,  in  regard  to  the  public,  that  ignorance 
cannot  be  pleaded  in  excuse  of  crimes;  but  that  it  did  not  hold  in 
civil  cases  (r).  This  broad  statement  is  utterly  irreconcilable  with  the 
well-established  doctrine  both  of  courts  of  law  and  courts  of  equity,  and 
the  decision  itself  has  been  overruled  long  since  («).  The  general  rule 
certainly  is  that  a  mistake  of  the  law  is  not  a~  ground  for  reforming  a 
deed,  founded  on  such  a  mistake.  And  whatever  exceptions  there  may 
be  to  this  rule,  they  are  not  only  few  in  number,  but  they  will  be  found 


(«.)  Imham  v.  Child,  1  Bro.  C.  C.  92. 

(o)  Marquis  of  Townsend  v.  Stangroom,  6  Ves.  332. 

(p)  Pullen  V.  Ready,  2  Atk.  587,  591. 

(3)  Ante,  §  113. 

(r)  Lansdowne  v.  Lansdowne,  Moseley  364;  s.c.  2  Jac.  &  W.  205. 

(s)  Stewart  v.  Stewart,  9  CI.  &  F.  911. 


54  EQUITY  JURISPKUDENCE.  [CH    V. 

to  have  something  peculiar  in  their  character,  and  to  involve  other 
elements  of  decisions. 

§  117.  In  illustration  of  this  remark,  we  may  refer  to  a  case,  com- 
monly cited  as  an  exception  to  the  general  rule.  In  that  case,  the 
daughter  of  a  freeman  of  London  had  a  legacy  of  £10,000,  left  by  her 
father's  will  upon  condition  that  she  should  release  her  orphanage 
share;  and,  after  her  father's  death,  she  accepted  the  l6gacy,  and 
executed  the  release.  Upon  a  bill,  afterwards  filed  by  her  against 
her  brother,  who  was  the  executor,  the  release  was  set  aside,  and  she 
was  restored  to  her  orphanage  share,  which  amounted  to  £40,000. 
Lord  Chancellor  Talbot,  in  making  the  decree,  admitted  that  there 
was  no  fraud  in  her  brother,  who  had  told  her  that  she  was  entitled 
to  her  election  to  take  an  account  of  her  father's  personal  estate,  and 
to  claim  her  orphanage  share;  but  she  chose  to  accept  the  legacy. 
His  lordship  said:  "  It  is  true,  it  appears,  the  son  [the  defendant]  did 
inform  the  daughter,  that  she  was  bound  either  to  waive  the  legacy 
given  by  the  father,  or  release  her  right  to  the  custom.  And,  so  far, 
she  might  know  that  it  was  in  her  power  to  accept  either  the  legacy 
or  orphanage  part.  But  I  hardly  think  she  knew  she  was  entitled 
to  have  an  account  taken  of  the  personal  estate  of  her  father;  and 
first  to  know,  what  her  orphanage  part  did  amount  to;  and  that  when 
she  should  be  fully  apprised  of  this,  then,  and  not  till  then,  she  was 
to  make  her  election,  which  very  much  alters  the  case.  For,  prob- 
ably, she  would  not  have  elected  to  accept  her  legacy,  had  she  known, 
or  been  informed,  what  her  orphanage  part  amounted  unto,  before 
she  waived  it  and  accepted  the  legacy  "  (f). 

§  118.  It  is  apparent,  from  this  language,  that  the  decision  of  his 
lordship  rested  upon  mixed  considerations,  and  not  exclusively  upon 
mere  mistake  or  ignorance  of  the  law  by  the  daughter.  There  was 
no  fraud  in  her  brother;  but  it  is'  clear  that  she  relied  upon  her 
brother  for  knowledge  of  her  rights  and  duties  in  point  of  law ;  and 
he,  however  innocently,  omitted  to  state  some  most  material  legal 
considerations,  affecting  her  rights  and  duty.  She  acted  under  this 
misplaced  confidence,  and  was  misled  by  it;  which  of  itself  consti- 
tuted no  inconsiderable  ground  for  relief.  But  a  far  more  weighty 
reason  is,  that  she  acted  under  ignorance  of  facts;  for  she  neither 
knew  nor  had  any  means  of  knowing  what  her  orphanage  share  was 
when  she  made  her  election.  It  was,  therefore,  a  clear  case  of  sur- 
prise in  matters  of  fact,  as  well  as  of  law.  No  ultimate  decision  was 
made  in  the  case,  it  being  compromised  by  the  parties. 

§  119.  The  case  of  Evans  v.  Llewellyn  (w)  is  exclusively  put  in  the 
decree  upon  the  ground  of  surprise,  "  the  conveyance  having  been 
obtained    and    executed    by    the    plaintiffs   improvidently. "      It    was 


(t)  Pusey  v.   Desboutirie,  3  P.  Will.   315. 
(u)  2  Bro.  C.  C.  150 ;  1  Cox  333. 


§    117—121.]  MISTAKE.  55 

admitted  that  there  was  no  sufficient  proof  of  fraud  or  imposition 
practised  upon  the  plaintiff  (though  the  facts  might  well  lead  to  some 
doubt  on  that  point) ;  and  the  plaintiff  was  certainly  not  ignorant  of 
any  of  the  facts  which  respected  his  rights.  The  Master  of  the  EoUs 
(Sir  Lloyd  Kenyon,  afterwards  Lord  Kenyon)  said:  "  The  party  was 
taken  by  surprise.  He  had  not  sufficient  time  to  act  with  caution; 
and,  therefore,  though  there  was  no  actual  fraud,  it  is  something  like 
fraud,  for  an  undue  advantage  was  taken  of  his  situation.  •  I  am  of 
opinion  that  the  party  was  not  competent  to  protect  himself;  and 
therefore  this  court  is  bound  to  afford  him  such  protection;  and 
therefore  these  deeds  ought  to  be  set  aside,  as  improvidently  obtained. 
If  the  plaintiff  had,  in  fact,  gone  back,  I  should  have  rescinded  the 
transaction  "  {x). 

§  120.  The  most  general  class  of  cases  relied  on  as  exceptions  to 
the  rule  is  that  class  where  the  party  has  acted  under  a  misconcep- 
tion, or  ignorance  of  his  title  to  the  property,  respecting  which  some 
agreement  has  been  made,  or  conveyance  executed.  So  far  as  igno- 
rance in  point  of  fact  of  any  title  in  the  party  is  an  ingredient  in 
any  of  these  eases,  they  fall  under  a  very  different  consideration  (y). 
But  so  far  as  the  party,  knowing  all  the  facts,  has  acted  upon  a 
mistake  of  the  law,  applicable  to  his  title,  they  are  proper  to  be 
discussed  in  this  place.  Upon  a  close  survey  many,  although  not  all, 
of  the  cases,  in  the  latter  predicament,  will  be  found  to  have  turned, 
not  upon  the  consideration  of  a  mere  mistake  of  law,  stripped  of  all 
other  circumstances,  but  upon  an  admixture  of  other  ingredients, 
going  to  establish  misrepresentation,  imposition,  undue  confidence, 
undue  influence,  mental  imbecility,  or  that  sort  of.  surprise,  which 
equity  uniformly  regards  as  a  just  foundation  for  relief  (s). 

§  121.  It  has  been  laid  down,  as  unquestionable  doctrine,  that  if  a 
party,  acting  in  ignorance  of  a  plain  and  settled  principle  of  law,  is 
induced  to  give  up  a  portion  of  his  indisputable  property  to  another, 
under  the  name  of  a  compromise,  a  court:  of  equity  will  relieve  him 
from  the  effect  of  his  mistake.  But,  where  a  doubtful  question  arises, 
such  as  a  question  respecting  the  true  construction  of  a  will,  a 
different  rule  prevails;  and  a  compromise  fairly  entered  into,  with 
due  deliberation,  will  be  upheld  in  a  court  of  equity,  as  reasonable  in 
itself,  to  terminate  the  differences  by  dividing  the  stake,  and  as  sup- 
ported by  principles  of  public  policy  (a). 

(x)  1  Cox  340,  341.  S.  P.  Fry  v.  Lane,  40  Ch.  D.  312 ;  James  v.  Kerr,  40  Ch.  D. 
449. 

iy)  See  Ramsden  v.  Hylton,  2  Ves.  Sen.  304 ;  Gann  v.  Cann,  1  P.  Will.  727 ; 
Farewell  v.  Coker,  cited  2  Meriv.  269;  McCarthy  v.  Decaix,  2  Euss.  &  Myl.  614.  See 
also  Cocking  v.  Pratt,  1  Ves.  Sen.  400. 

(z)  See  Willan  v.  Willan,  16  Ves.  82. 

(a)  Naylor  v.  Winch,  1  Sim.  &  St.  565.  See  Stapilton  v.  Stapilton,  1  Atk.  2; 
Dunnage  v.  White,  1  Swanst'.  137 ;  Gordon  v.  Gordon,  3  Swanat.  400 ;  Smith  v. 
Piricombe,  3  Mac.  &  G.  653. 


56  EQUITY  JURISPRUDENCE.  [OH.  V. 

§  122.  In  regard  to  the  first  proposition,  the  terms  in  which  it  is 
expressed  have  the  material  quahfication,  that  the  party  has,  upon 
plain  and  settled  principles  of  law,  a  clear  title,  and  yet  is  in  gross 
ignorance  that  he  possesses  any  title  whatsoever.  Thus,  if  the  eldest 
son,  who  is  heir-at-law  of  all  the  undisposed  of  fee-simple  estates  of 
his  ancestor,  should,  in  gross  ignorance  of  the  law,  knowing,  however, 
that  he  was  the  eldest  son,  agree  to  divide  the  estates  with  a  younger 
brother;  such  an  agreement,  executed  or  unexecuted,  would  be  held, 
in  a  court  of  equity,  invalid,  and  relief  would  be  accordingly  granted. 
In  a  case  thus  strongly  put,  there  may  be  ingredients,  which  would 
give  a  colouring  to  the  case,  independent  of  the  mere  ignorance  of  the 
law.  If  the  younger  son  were  not  equally  ignorant,  there  would  be 
much  ground  to  suspect  fraud,  imposition,  misrepresentation,  or  undue 
influence  on  his  part  (b).  And  if  he  were  equally  ignorant,  the  case 
would  exhibit  such  a  gross  mistake  of  rights,  as  would  lead  to  the 
conclusion  of  such  great  mental  imbecility,  or  surprise,  or  blind  .and 
credulous  confidence,  on  the  part  of  the  eldest  son,  as  might  fairly 
entitle  him  to  the  protection  of  a  court  of  equity  upon  general  prin- 
ciples. Indeed,  where  the  party  acts  upon  the  misapprehension  that 
he  has  no  title  at  all  in  the  property,  it  seems  to  involve  in  some 
measure  a  mistake  of  fact;  that  is,  of  the  fact  of  ownership,  arising 
from  a  mistake  of  law.  A  party  can  hardly  be  said  to  intend  to  part 
with  a  right  or  title,  of  whose  existence  he  is  wholly  ignorant;  and  if 
he  does  not  so  intend,  a  court  of  equity  will,  in  ordinary  cases,  relieve 
him  from  the  legal  effect  of  instruments  which  surrender  such  unsus- 
pected right  or  title  (c). 

§  124.  In  Bingham  v.  Bingham  (d),  there  was  a  devise  by  A.  to  his 
eldest  son  and  heir  B.,  in  fee  tail,  limiting  the  reversion  to  his  own 
right  heirs.  B.  left  no  issue,  and  devised  the  estate  to  the  plaintifi. 
The  defendant  had  brought  an  ejectment  for  the  estate  under  the 
will;  and  the  plaintiff  purchased  the  estate  of  the  defendant  for  £80, 
under  a  mistake  of  law,  that  the  devise  to  him,  by  B.,  could  not 
convey  the  fee.  Having  paid  the  purchase-money,  he  now  brought 
his  bill  to  have  it  refunded,  alleging  in  the  bill  that  he  was  ignorant 
of  the  law,  and  persuaded  by  the  defendant  and  his  scrivener  and 
conveyancer,  that  B.  had  no  power  to  make  the  devise.  The  Master 
of  the  Eolls,  sitting  for  Lord  Hardwicke,  granted  the  relief,  saying, 
that,  though  no  fraud  appeared,  and  the  defendant  apprehended  he 
had  a  right,  yet  there  was  a  plain  mistake,  such  as  the  court  was 
warranted  to  relieve  against.  This  case  has  been  the  subject  of  con- 
troversy as  to  the  actual  ground  of  the  decision.  The  report  itself, 
and  Lord  Cottenham,  referred  it  to  the  ground  of  mistake  (e),  as  did 

(b)  Leonard  v.  Leonard,  2  Ball  &  B.  182. 
,  (c)  Ramsden  v.  Hylton,  2  Ves.  Sen.  304;  Bullock  v.  Dowries,  9  H.  L.  C    1 
yd)  1  Ves.  Sen.  126;  Belt's  Sup.  79. 
(e)  Stewart  v.  Stewart,  6  CI.  &  F.  at  p.  968. 


§    122—127.]  MISTAKE.  57 

Lord  Gran  worth  (/).    It  may  also  be  referred  to  the  ground  of  fraud  (g), 
as  defined  in  the  courts  of  equity. 

§  124a-.  Bingham  v.  Bingham  was  expressly  approved  and  followed 
in  Cooper  v.  Phibbs  (h),  decided  by  the  House  of  Lords  in  1867.  The 
facts  were  as  follows: — The  petdtoner  agreed  to  become  tenant  to  the 
respondent  Phibbs  of  a  salmon  fishery  for  three  years,  but  he  after- 
wards discovered  that  he  was  himself  the  owner  of  the  salmon  fishery. 
He  claimed  a  declaration  that  the  agreement  was  consequently  void, 
as  being  made  under  mistake,  and  it  was  held  by  the  House  of  Lords 
that  he  was  entitled  to  the  declaration  prayed  for.  It  should  be 
observed  that  there  was  an  additional  element  in  the  case,  from  the 
fact  that  the  petitioner's  uncle,  for  whose  daughters  Phibbs  was 
trustee,  had  told  him  that  the  salmon  fishery  belonged  to  him,  i.e.,  the 
uncle. 

§  126.  The  distinction  between  cases  of  mistake  of  a  plain  and 
settled  principle  of  law,  and  cases  of  mistake  of  a  principle  of  law, 
not  plain  to  persons  generally,  but  which  is  yet  constructively  certain, 
as  a  foundation  of  title,  is  not  of  itself  very  intelligible,  or,  practically 
speaking,  very  easy  eft  application,  considered  as  an  independent 
element  of  decision.  In  contemplation  of  law,  all  its  rules  and  prin- 
ciples are  deemed  certain,  although  they  have  not,  as  yet,  been 
recognised  by  public  adjudications.  This  doctrine  proceeds  upon  the 
theoretical  ground,  that  Id  certum  est  quod  certum,  reddi  potest; 
and  that  decisions  do  not  make  the  law,  but  only  promulgate  it. 
Besides;  what  are  to  be  deemed  plain  and  settled  principles  ?  Are 
they  such  as  have  been  long  and  uniformly  established  by  adjudica- 
tions only  ?  Or  is  a  single  decision  sufficient  ?  What  degree  of 
clearness  constitutes  the  line  of  demarcation  ?  If  there  have  been' 
decisions  different  ways  at  different  times,  which  is  to  prevail  ?  If  a 
majority  of  the  profession  hold  one  doctrine,  and  a  minority  another, 
is  the  rule  to  be  deemed  doubtful,  or  is  it  to  be  deemed  certain  ? 

§  127.  Take  the  case  commonly  put  on  this  head,  of  the  construc- 
tion of  a  will.  Every  person  is  presumed  to  know  the  law ;  and 
though  opinions  may  differ  upon  the  construction  of  the  will  before 
an  adjudication  is  made;  yet,  when  it  is  made,  it  is  supposed  always 
to  have  been  certain.  It  may  have  been  a  question  at  the  bar, 
whether  a  devise  was  an  estate  for  life,  or  in  tail,  or  in  fee  simple. 
But  when  the  court  has  once  decided  it  to  be  the  one  or  the  other, 
the  title  is  always  supposed  to  have  been  fixed  and  certain  in  the  party 
from  the  beginning.  It  will  furnish  a  sufficient  title  to  maintain  a 
bill  for  the  specific  performance  of  a  contract  of  sale  of  that  title  (i). 

if)  Cooper  V.  Phibbs,  L.  E.  2  H.  L.,  at  p.  164. 

(3)  Hitchcock  V.  Giddings,  Dan.  1,  s.c.  4  Price,  136. 

Ih)  L.  R.  2  H.  L.  150.  See  also  Earl  Beauchamp  v.  Winn,  L.  B.  6  H.  L.  223; 
Daniell  v.  Sinclair,  6  App.  Cas.  181. 

(i)  Beidley  v.  CaHer,  L.  E.  4  Ch.  230;  Bell  v.  Holtby,  L.  E.  15  Eq.  178;  Osborne 
to  Rowlatt,  13  Ch.  D.  774. 


58  EQUITY  JURISPEDDENCE.  [CH.   V. 

§  128.  Where  there  is  a  plain  and  established  doctrine  on  the 
subject,  so  generally  known,  and  of  such  constant  occurrence,  as  to  be 
understood  by  the  community  at  large  as  a  rule  of  property,  such  as 
the  common  canons  of  descent;  there,  a  mistake  in  ignorance  of  the 
law,  and  of  title  founded  on  it.,  may  well  give  rise  to  a  presumption 
that  there  has  been  some  undue  influence,  imposition,  mental  imbe- 
cility, surprise,  or  confidence  abused.  But  in  such  cases  the  mistake 
of  the  law  is  not  the  foundation  of  the  relief;  but  it  is  the  medium  of 
proof  to  establish  some  other  proper  ground  of  relief  (k). 

§  129.  Lord  Eldon,  in  a  case  of  a  family  agreement,  suggested 
that  there  might  be  a  distinction  between  cases,  where  there  is  a 
doubt  raised  between  the  parties  as  to  their  rights,  and  a  compromis..- 
is  made  upon  the  footing  of  that  doubt,  and  cases,  where  the  parties 
act  upon  a  supposition  of  right  in  one  of  the  parties  without  :%  doubt 
upon  it,  under  a  mistake  of  law.  The  former  might  be  held  obligatory, 
when  the  latter  ought  not  to  be  (l).  But  his  lordship  admitted  that 
the  doctrine  attributed  to  Lord  Macclesfield  was  otherwise,  denying 
the  distinction,  and  giving  equal  validity  to  agreements  entered  into 
upon  a  supposition  of  a  right,  and  of  a  doubtful  right.  And  in  a  sub- 
sequent case  Lord  Eldon  based  the  validity  of  a  compromise  upon 
the  fact  that  "  the  parties  dealt  with  equal  knowledge  of  the  subject," 
by  which  word  he  seems  to  have  meant  circumstances  (m). 

§  130.  There  may  be  a  solid  ground  for  a  distinction  between 
cases,  where  a  party  acts  or  agrees  in  ignorance  of  any  title  in  him, 
or  upon  the  supposition  of  a  clear  title  in  another,  and  cases  where 
there  is  a  doubt  or  controversy  or  litigation  between  parties  as  to 
their  respective  rights.  In  the  former  cases  (as  has  been  already 
suggested)  the  party  seems  to  labour  in  some  sort  under  a  mistake  of 
fact  as  well  as  of  law.  He  supposes,  as  a  matter  of  fact,  that  he  has 
no  title,  and  that  the  other  party  has  a  title  to  the  property.  As 
parties  can  only  be  treated  as  dealing  with  ascertained  specific  ques- 
tions (n),  an  intention  cannot  be  imputed  to  him  to  release  or 
surrender  his  title,  if  the  act  or  agreement  proceeds  upon  the  supposi- 
tion that  he  has  none.  Lord  Macclesfield  is  reported  to  have  said,  that 
if  the  party  releasing  is  ignorant  of  his  right  to  the  estate,  or  if  his 
right  is  concealed  from  him  by  the  person  to  whom  the  release  is 
made,  there  would  be  good  reasons  for  setting  aside  the  release  (o). 

§    131.     The   whole    doctrine    of   the   validity    of   compromises   of 

(k)  See  Sturge  v.  Sturge,  12  Beav.  229;  Curson  v.  Bellworthy,  3  H.  L.  C.  742; 
Fry  V.  Lane,  40  Ch.  D.  312. 

(l)  Stockley  v.  Stockley,  1  V.  &  B.  31. 

Oh)  Hotchis  v.  Dicksm,  2  Bligh.,  at  p.  848.  See  also  Bellamy  v.  Sabine,  2 
Phill.  426;  Cloutte  v.  Storey,  1911,  1  Ch.  18. 

(n)  Cloutte  V.  Storey,  [1911]  1  Ch.  18. 

(o)  Cann  v.  Cann,  1  P.  Will.  727. 


§    128—132.]  MISTAKE.  59 

doubtful  rights  rests  on  this  foundation  (p).  If  such  compromises  are 
otherwise  unobjectionable,  they  will  be  binding,  and  the  right  will 
not  prevail  against  the  agreement  of  the  parties ;  for  the  right  must 
always  be  on  one  side  or  the  other,  and  there  would  be  an  end  of 
compromises,  if  they  might  be  overthrown  upon  any  subsequent 
ascertainment  of  rights  contorary  thereto  (q).  If,  therefore,  a  com- 
promise of  a  doubtful  right  is  fairly  made  between  parties,  its  validity 
cannot  depend  upon  any  future  adjudication  of  that  right  (r).  And 
where  compromises  of  this  sort  are  fairly  entered  into,  whether  the 
uncertainty  rests  upon  a  doubt  of  fact,  or  a  doubt  in  point  of  law,  if 
both  parties  are  in  the  same  ignorance,  the  compromise  is  equally 
binding,  and  cannot  be  affected  by  any  subsequent  investigation  and 
result  (s).  But  if  the  parties  are  not  mutually  ignorant,  the  case 
admits  of  a  very  different  consideration,  whether  the  ignorance  be  of  a 
matter  of  fact  or  of  law  (t).  It  has  been  emphatically  said,  that  no 
man  can  doubt  that  the  Court  of  Chancery  will  never  hold  parties, 
acting  upon  their  rights,  to  be  bound,  unless  they  act  with  full  know- 
ledge of  all  the  doubts  and  difficulties  that  do  arise.  But  if  parties  will, 
with  full  knowledge,  act  upon  them,  though  it  turns  out  that  one  gains 
an  advantage  from  a  mistake  in  point  of  law,  yet  if  the  agreement  was 
reasonable  and  fair  at  the  time,  it  shall  be  binding  (m).  And  transac- 
tions are  not,  in  the  eye  of  a  court  of  equity,  to  be  treated  as  binding 
even  as  family  arrangements,  where  the  doubts  existing,  as  to  the 
rights  alleged  to  be  compromised,  are  not  presented  to  the  mind  of 
the  party  interested  (a;). 

§  132.  There  are  cases  of  family  compromises,  where,  upon  prin- 
ciples of  policy,  for  the  honour  or  peace  of  families,  the  doctrine 
sustaining  compromises  has  been  carried  further.  And  it  has  beert 
truly  remarked,  that  in  such  family  arrangements  the  Court  of  Chan- 
cery has  administered  an  equity,  which  is  not  applied  to  agreements  • 
generally  (y).  Such  compromises,  fairly  and  reasonably  made,  to  save 
the  honour  of  a  family,  as  in  case  of  suspected  illegitimacy,  to 
prevent  family  disputes  and  family  forfeitures,  are  upheld  with  a 
strong  hand;  and  are  binding,  when  in  eases  between  mere  strangers 
the  like  agreements  would  not  be  enforced   (a).     Thus,   it  has  been 

(p)  See  the  dictum  of  Lord  Hardwicke,  in  Brown  v.  Pring,  1  Ves.  407,  408,  as 
to  compromises  made  by  parties,  with  their  eyes  open  and  rightly  informed. 

(q)  Cann  v.  Cann,  1  P.  Will.  727;  Stapilton  v.  StapilUm,  1  Atk.  10;  Naylor  v. 
Winch,  1  Sim.  &  Stu.  556;  Goodman  v.  Sayers,  2  Jac.  &  Walk.  263.  See  Neale  v. 
Neale,  1  Keen,  672. 

(t)  Lucy's  Case,  4  De  G.  M.  &.G.  356;  Miles  v.  New  Zealand  Alford  Estate  Co.y 
32  Ch.  D.  266. 

(s)  Lucy's  Case,  4  De  G.  M.  &  G.  356;  Lord  Bellhaven's  Case,  3  De  G.  J.  &  S, 
41;  Dixon  v.  Evans,  L.  E.  5  H.  L.  606. 

(t)  Gordon  v.  Gordon,  3  Swanst.  400;  Smith  v.  Pincombe,  3  Mac.  &  G.  653. 

(o)  Gibbons  v.  Gaunt,  4  Ves.  849. 

(s)  Lawton  v.  Campion,  18  Beav.  87. 

{y)  Stockley  v.  Stockley,  1  V.  &  B.  29 ;  Bellamy  v.  Sabine,  2  Phill.  425. 

(z)  Stapiltpn  v.  Stapilton,  1  Atk.  10;  Persse  v.  Persse,  7  CI.  &  F.  279. 


60  EQUITY  JURISPRUDENCE.  [CH.  V. 

said,  that  if,  on  the  death  of  a  person,  seised  in  fee,  a  dispute  arises, 
who  is  heir;  and  there  is  room  for  a  rational  doubt,  as  to  that  fact, 
and  the  parties  deal  with  each  other  openly  and  fairly,  investigating 
the  subject  for  themselves,  and  each  communicating  to  the  other  all 
that  he  knows,  and  is  informed  of,  and  at  length  they  agree  to  dis- 
tribute the  property,  under  the  notion  that  the  elder  claimant  is 
illegitimate,  although  it  turns  out  afterwards  that  he  is  legitimate; 
there,  the  court  will  not  disturb  such  an  arrangement,  merely 
because  the  fact  of  legitimacy  is  subsequently  established  (a).  Yet, 
in  such  a  case,  the  party  acts  under  a  mistake  of  fact.  In  cases  of 
ignorance  of  title,  upon  a  plain  mistake  of  the  law,  there  seems  little 
room  to  distinguish  between  family  compromises  and  others. 

§  133.  And  where  there  is  a  mixture  of  mistake  of  title,  gross  per- 
sonal ignorance,  liability  to  imposition,  habitual  intoxication,  and 
want  of  professional  advice,  there  has  been  manifested  a  strong  dis- 
inclination of  courts  of  equity  to  sustain  even  family  settlements.  It 
was  upon  this  sort  of  mixed  ground  that  it  has  been  held  that  a  deed 
executed  by  the  members  of  a  family  to  determine  their  interest 
•under  the  will  and  partial  intestacy  of  an  ancestor,  ought  not  to  be 
enforced.  It  appeared  on  the  face  of  the  deed,  that  the  parties  did 
not  understand  their  rights,  or  the  nature  of  the  transaction;  and 
that  the  heir  surrendered  an  unimpeachable  title  without  considera- 
tion. Evidence  was  also  given  of  his  gross  ignorance,  habitual 
intoxication,  and  want  of  professional  advice.  But  there  was  no 
sufficient  proof  of  fraud  or  undue  influence;  and  there  had  been  an 
•acquiescence  of  five  years   (b). 

§  134.  Cases  of  surprise,  mixed  up  with  a  mistake  of  law,  stand 
upon  a  ground  peculiar  to  themselves,  and  independent  of  the  general 
doctrine.  In  such  cases  the  agreements  or  acts  are  unadvised,  and 
improvident,  and  without  due  deliberation;  and,  therefore,  they  are 
held  invalid,  upon  the  common  principle  adopted  by  courts  of  equity, 
to  protect  those  who  are  unable  to  protect  themselves,  and  of  whom 
an  undue  advantage  is  taken  (c).  Where  the  surprise  is  mutual,  there 
is  of  course  a  still  stronger  ground  to  interfere ;  for  neither  party  has 
intended  what  has  been  done.  They  have  misunderstood  the  effect 
of  their  own  agreements  or  acts;  or  have  presupposed  some  facts  or 
rights  existing,  as  the  basis  of  their  proceedings,  which  in  truth  did 
not  exist.  Contracts  made  in  mutual  error,  under  circumstances 
material  to  their  character  and  consequences,  seem,  upon  general 
principles,  invalid  (d).  Non  videntur,  qui  errant,  consentire,  is  a  rule 
of  the  civil  law  (e) ;  and  it  is  founded  in  common  sense  and  common 

(0)  Gordon  v.  Gordon,  3  S'wanst.  463,  476. 

(b)  Dunnage  v.  White,  1  Swanst.  137. 

(c)  Sturge  v.  Sturge,  12  Beav.  229.     See  ante,  §  119. 

(d)  Mortimer  v.  Shortall,  2  Dr.  &  War.  363;  May  v.  Piatt,  1900,  1  Ch.  616. 

(e)  Dig.  Lib.  50,  tit.  17,  f.  116,  §  2. 


§    133—137.]  MISTAKE.  61 

justice.  But  in  its  application  it  is  material  to  distinguish  between 
error  in  circumstiances  which  do  not  influence  the  contract,  and  error 
in  circumstances  which  induce  the  contract. 

§  135.  There  are  also  cases  of  peculiar  trust,  and  confidence,  and 
relation  between  the  parties,  which  give  rise  to  a  qualification  of  the 
general  doctrine.  Thus,  where  a  mortgagor  had  mortgaged  an  estate 
to  a  mortgagee,  who  was  his  attorney,  and  in  settling  an  account  with 
the  latter,  he  had  allowed  him  a  poundage  for  having  received  the 
rents  of  the  estate,  in  ignorance  of  the  law  that  a  mortgagee  was  not 
entitled  to  such  an  allowance,  which  was,  professionally  known  to  the 
attorney;  it  was  held  that  the  allowance  should  be  set  aside.  But  the 
master  of  the  rolls,  upon  that  occasion,  put  the  case  upon  the  peculiar 
relation  between  the  parties;  and  the  duty  of  the  attorney  to  have 
made  known  the  law  to  his  client,  the  mortgagor.  He  said  that  he 
did  not  enter  into  the  distinction  between  allowances  in  accounts 
from  ignorance  of  law,  and  allowances  from  ignorance  of  fact;  that 
he  did  not  mean  to  say  that  ignorance  of  law  will  generally  open  an 
account.  But  that,  the  parties  standing  in  this  relation  to  each  other, 
he  would  not  hold  the  mortgagor,  acting  in  ignorance  of  his  rights,  to 
have  given  a  binding  assent  (/). 

§  136.  There  are,  also,  some  other  cases  in  which  relief  has  been 
granted  in  equity,  apparently  upon  the  ground  of  mistake  of  law. 
But  they  will  be  found,  upon  examination,  rather  to  be  cases  of 
defective  execution  of  the  intent  of  the  parties  from  ignorance  of  law 
as  to  the  proper  mode  of  framing  the  instrument.  Thus,  where  a 
husbsmd,  upon  his  marriage,  entered  into  a  bond  to  his  wife,  without 
the  intervention  of  trustees,  to  leave  her  a  sum  of  money  if  she  should 
survive  him;  the  bond,  although  released  at  law  by  the  marriage, 
was  held  good  as  an  agreement  in  equity,  entitling  the  wife  to  satis- 
faction out  of  the  husband's  assets  (g).  And  so,  e  contra,  where  a  wife 
before  marriage  executed  a  bond  to  her  husband,  to  convey  all  her 
lands  to  him  in  fee,  it  was  upheld  in  favour  of  the  husband,  after 
the  marriage,  as  an  agreement  defectively  executed,  to  secure  to  the 
husband  the  land  as  her  portion  (h). 

§  137.  We  have  thus  gone  over  the  principal  cases  which  are 
supposed  to  contain  contradictions  of,  or  exceptions  to,  the  general 
rule,  that  ignorance  of  the  law,  with  a  full  knowledge  of  the  facts, 
furnishes  no  ground  to  rescind  agreements  or  to  set  aside  solemn  acts 
of  the  parties.  Without  undertaking  to  assert  that  there  are  none 
of  these  cases  which  are  inconsistent  with  the  rule,  it  may  be  affirmed 
that  the  real  exceptions  to  it  are  very  few,  and  generally  stand  upon 

(/)  Langstaffe  v.  Fenwick,  10  Ves.  405;  S.  P.  Cockburn  v.  Edwards,  18  Ch.  D. 
449. 

ig)  Acton  v.  Pearce,  Prec.  Ch.  237 ;  Fitzgerald  v.  Fitzgerald,  L.  E.  2  P.  C.  83;  In 
re  Breton's  Estate,  Breton  v.  Woolven,  17  Ch.  D.  416. 

(h)  Cannel  v.  Buckle,  2  P.  Will.  243. 


62  EQUITY  JDKISPEUDENCE.  [CH.  V. 

some  very  urgent  pressure  of  circumstances.  The  rule  prevails  in  all 
cases  of  compromises  of  doubtful,  and  perhaps  in  all  cases  of  doubted 
rights,  and  especially  in  all  cases  of  family  arrangements  (f).  It  is 
relaxed  in  cases  where  there  is  a  total  ignorance  of  title,  founded  in 
the  mistake  of  a  plain  and  settled  principle  of  law,  and  in  cases  of 
imposition,  misrepresentation,  undue  influence,  misplaced  confidence, 
and  surprise  (fe). 

§  138.  It  is  a  matter  of  regret  that,  in  the  present  state  of  the  law, 
it  is  not  practicable  to  present,  in  any  more  definite  form,  the  doctrine 
respecting  the  effect  of  mistakes  of  law,  or  to  clear  the  subject  from 
some  obscurities  and  uncertainties  which  still  surround  it.  But  it  may 
be  safely  affirmed,  upon  the  highest  authority,  as  a  well-established 
doctrine,  that  a  mere  naked  mistake  of  law,  unattended  with  any 
such  special  circumstances  as  have  been  above  suggested,  will  furnish 
no  ground  for  the  interposition  of  a  court  of  equity;  and  the  present 
disposition  of  courts  of  equity  is  to  narrow  rather  than  to  enlarge, 
the  operation  of  exceptions  (l). 

§  138o.  The  jurisdiction  exercised  by  the  court  as  a  court  of  equity 
is  still  in  the  same  irritating  condition  of  doubt.  In  the  common  law 
action  for  money  had  and  received,  to  which  equitable  principles  were 
always  applied,  the  party  paying  might  recover  against  the  recipient 
if  the  payment  were  made  in  ignorance  of  the  facts,  notwithstanding 
means  of  knowledge  existed,  or  made  in  forgetfulness  of  facts  (rw). 

§  139.  Where  a  bond  fide  purchaser,  for  a  valuable  consideration, 
without  notice,  is  concerned,  equity  will  not  interfere  to  grant  relief 
in  favour  of  a  party,  although  he  has  acted  in  ignorance  of  his  title 
upon  a  mistake  of  law;  for  in  such  a  case  the  purchaser  has,  at  least, 
an  equal  right  to  protection  with  the  party  labouring  under  the 
mistake  (n.).  And  where  the  equities  are  equal,  the  court  withholds 
itself  from  any  interference  between  the  parties  (o). 

§  140.  In  regard  to  the  other  class  of  mistakes,  that  is,  mistakes  of 
iact,  there  is  not  so  much  difficulty..  The  general  rule  is,  that  an 
act  done,    or  contract  made,    under   a   mistake   or    ignorance    of    a 

(t)  Stewart  v.  Stewart,  6  CI.  &  F.  911;  Persse  v.  Persse,  7  CI.  &  F.  279. 

(A;)  Stewart  v.  Stewart,  6  CI.  &  F.  911 ;  Daniell  v.  Sinclair,  6  App.  Oaa.  181. 

(I)  Lord  Cottenham,  in  his  elaborate  judgment  in  Stewart  v.  Stewart,  6  CI.  &  F. 
694  to  971,  critically  examined  all  the  leading  authorities  upon  this  subject,  and 
arrived  at  the  same  conclusion;  and  his  opinion  was  confirmed  by  the  House  of  Lords. 
See  also  Great  Western  Railway  v.  Gripps,  5  Hare  91. 

(to)  Kelly  V.  Solari,  6  M.  &  W.  54. 

(n)  Ante,  §§  64  c,  108;  post,  §§  166,  381,  409,  436. 

(o)  See  Maiden  v.  Menill,  2  Atk.  8.  In  the  civil  law  there  is  much  discussion  as 
to  the  effect  of  error  of  law,  and  no  inconsiderable  embarrassment  exists  in  stating, 
in  what  cases  of  error  in  law  the  party  is  relievable,  and  in  what  not.  It  is  certain 
that  a  wide  distinction  was  made  between  the  operation  of  errors  of  law,  and  errors 
of  fact.  The  subject  is  discussed  at  length.  Dig.  Lib.  22,  tit.  6,  f.  2.  See  also  2 
Evans'  Pothier  on  Oblig.  Appendix,  Ko.  xviii.  pp.  408  to  447;  Ayliffe,  Pand  B  2 
tit.  15 ;  1  Domat,  B.  1,  tit.  8,  §  1. 


§    138—141.]  MISTAKE.  63 

material  fact,  is  voidable  and  relievable  in  equity.  The  ground  of 
this  distinction  between  ignorance  of  law  and  ignorance  of  fact  seems 
to  be,  that,  as  every  man  of  reasonable  understanding  is  presumed  to 
know  the  law,  and  to  act  upon  the  rights  which  it  confers  or  supports, 
when  he  knows  all  the  facts,  it  is  culpable  negligence  in  him  to  do  an 
act,  or  to  make  a  contract,  and  then  to  set  up  his  ignorance  of  law  as 
a  defence.  The  general  maxim  here  is,  as  in  other  cases,  that  the 
law  aids  those  who  are  vigilant,  and  not  those  who  slumber  over  their 
rights.  And  this  reason  is  recognised  as  the  foundation  of  the  dis- 
tinction, as  well  in  the  civil  law  as  in  equity  (p).  But  no  person  can 
be  presumed  to  be  acquainted  with  all  matters  of  fact;  neither  is  it 
possible,  by  any  degree  of  diligence,  in  all  cases  to  acquire  that  know- 
ledge, and,  therefore,  an  ignorance  of  facts  does  not  import  culpable 
negligence.  The  rule  applies  not  only  to  cases  where  there  has  been 
a  studied  suppression  or  concealment  of  the  facts  by  the  other  side, 
which  would  amount  to  fraud;  but  also  to  many  cases  of  innocent 
ignorance  and  mistake  on  both  sides  (g).  So,  if  a  party  has  bond  fide 
entirely  forgotten  the  facts,  he  will  be  entitled  to  relief,  because,  under 
such  circumstances,  he  acts  under  the  like  mistake  of  the  facts,  as  if 
he  had  never  known  them  (r).  Ignorance  of  foreign  law  is  deemed  to 
be  ignorance  of  fact,  because  the  court  itself  does  not  take  judicial 
notice  of  the  foreign  law,  which  must  be  proved  as  a  fact  (»). 

§  141.  The  rule,  as  to  ignorance  or  mistake  of  facts,  entitling  the 
party  to  relief,  has  this  important  qualification,  that  the  fact  must  be 
material  to  the  act' or  contract,  that  is,  that  it  must  be  essential  to  its 
character,  and  an  efficient  cause  of  its  concoction.  For  though  there 
may  be  an  accidental  ignorance  or  mistake  of  the  fact;  yet,  if  the  act 
or  contract  is  not  materially  affected  by  it,  the  party  claiming  relief 
will  be  denied  it.  This  distinction  may  be  easily  illustrated  by  a 
familiar  case.  A.  buys  an  esiate  of  B.,  to  which  the  latter  is  supposed 
to  have  an  unquestionable  title.  It  turns  out,  upon  due  investigation 
of  the  facts,  unknown  at  the  time  to  both  parties,  that  B.  has  no 
title  (as  if  B.  were  entitled  in  remainder  expectant  upon  the  deter- 
mination of  an  estate  tail  in  C,  and  C.  had  executed  a  disentailing 
assurance) :  in  such  a  case  equity  would  relieve  the  purchaser,  and 
rescind  the  contract  (t).  But,  suppose  A.  were  to  sell  an  estate  to  B., 
whose  location  was  well  known  to  each,  and  they  mutually  believed  it 
to  contain  twenty  acres,  and  in  point  of  fact  it  only  contained  nineteen 

(p)  See  Pothier,  Pand.  Lib.  22,  tit.  6,  §  3,  n.  4,  6,  6,  7;  §  4,  n.  10,  11;  Cocking 
v.  Pratt,  1  Ves.  Sen.  400. 

(g)  Att.-Gen.  v.  Ray,  L.  E.  9  Ch.  397;  Scott  v.  Goulscm,  [1903]  2  Ch.  249.  The 
same  principle  was  applied  at  the  common  law,  Couturier  v.  Hastie,  5  H.  L.  C.  673. 

(r)  Lady  Hood  of  Avalon  v.  Mackinnon,  [1909]  1  Ch.  476. 

(s)  Leslie  v.  Bailie.  2  Y.  &  C.  Ch.  91 ;  M'Cormick  v.  Garnett,  5  De  G.  M.  &  G.  278 ; 
Di  Sora  v.  Phillips,  10  H.  L.  C.  624. 

(t)  See  1  Evans's  Pothier  on  Oblig.  Pt.  1,  ch.  1,  art.  9,  n.  17,  18;  Calverly  v. 
Williams,  1  Ves.  Jun.  210;  Hitchcock  v.  Giddings,  Dan.  1. 


64  EQUITY  JDEISPRUDENCE.  [CH.   V. 

acres  and  three-fourths  of  an  acre,  and  the  difference  would  not  have 
varied  the  purchase  in  the  view  of  either  party;  in  such  a  case,  the 
mistake  would  not  be  a  ground  to  rescind  the  contract  (u).  But  it  is 
now  clearly  settled  that  with  a  few  special  exceptions  a  purchaser, 
after  the  conveyance  is  executed  by  all  necessEiry  parties,  has  no 
remedy  at  law  or  in  equity  in  respect  of  defects  either  in  the  title  to, 
or  quantity  or  quality  of,  the  estate,  which  are  not  covered  by  the 
vendor's  covenants,  unless  he  can  make  out  a  case  of  fraud  (x). 

§  142.  In  cases  of  mutual  mistake  going  to  the  essence  of  the  con- 
tract, it  is  not  necessary  that  there  should  be  any  presumption  of 
fraud.  On  the  contrary,  equity  will  often  relieve,  however  innocent 
the  parties  may  be.  Thus,  if  one  person  should  sell  a  policy  on  the 
life  of  another  to  a  third  party,  and  the  life  assured  was,  in  fact,  dead, 
without  any  knowledge  of  the  fact  by  either  party,  a  court  of  equity 
would  relieve  the  vendor,  upon  the  ground  that  the  purchase  and  sale 
proceeded  upon  the  footing  that  the  life  was  in  existence.  It  con- 
stituted, therefore,  the  very  essence  and  condition  of  the  obligation  of 
their  contract  (y).  So,  if  a  person  should  execute  a  release  to  another 
party  upon  the  supposition,  founded  in  a  mistake,  that  certain  debt 
or  annuity  had  been  discharged,  although  both  parties  were  innocent, 
the  release  would  be  set  aside  upon  the  ground  of  a  mistake  (2). 

§  143.  The  same  principle  will  apply  to  all  other  cases,  where  the 
parties  mutually  bargain  for  and  upon  the  supposition  of  an  existing 
right.  Thus  if  a  purchaser  should  buy  the  interest  of  the  vendor  in 
a  remainder  in  fee,  expectant  upon  an  estate  tail,  and  the  tenant  in 
tail  had  at  the  time,  unknown  to  both  parties,  barred  the  estate  in 
remainder,  a  court  of  equity  would  relieve  the  purchaser,  in  regard 
to  the  contract,  purely  upon  the  ground  of  mistake  (a). 

§  144.  The  same  principle  will  apply  to  cases  of  purchases,  where 
the  parties  have  been  innocently  misled  under  a  mutual  mistake  as 
to  the  extent  of  the  thing  sold.  Thus,  if  one  party  thought  that  he 
had  bond  fide  purchased  a  piece  of  land,  as  parcel  of  an  estate,  and 
the  other  thought  he  had  not  sold  it,  under  a  mutual  mistake  of  the 
bargain,  that  would  furnish  a  ground  to  set  aside  the  contract; 
because  (as  has  been  said)  it  is  impossible  to  say,  that  one  shall  be 
forced  to  give  that  price  for  part  only,  which  he  intended  to  give  for 
the  whole;  or,  that  the  other  shall  be  obliged  to  sell  the  whole  for 
what  he  intended  to  be  the  price  of  part  only  (b).  But  where  by  the 
mutual  mistake  of  vendor  and  purchaser,   as  to   the   duration   of  a 

(u)  Okill  V.  WUttaker,  1  De  G.  &  Sm.  83 ;  2  Ph.  338. 

(x)  Joliffe  V.  Baker,  11  Q.  B.  D.  255 ;  Palmer  v.  Johnson,  12  Q.  B.  D.  32,  Seddon 
V.  N.  Eastern  Salt  Co.,  [1905]  1  Ch.  326. 

(y)  Scott  V.  Coulson,  [1903]  2  Ch.  249.     Colyer  v.  Clay,  7  Beav.  188. 
(z)  Hore  v.  Becker,  12  Sim.  465;  Fane  v.  Fane,  L.  E.  20  Eq.  698. 

(a)  Hitchcock  v.  Giddings,  Dan.  1,  s.c.  4  Price,  135. 

(b)  Calverly  v.  Williams,  1  Vea.  Jun.  210;  Peers  v.  Lambert,  7  Beav.  546.  See 
Douglas  v.  Baynes,  [1908]  A.  C.  477. 


§    142—147.]  MISTAKE.  65 

leasehold  interest,  it  was  sold  for  much  less  than  its  real  value,  and 
the  conveyance  had  been  executed,  and  the  purchaser  had  been  in 
possession  some  years,  the  vendor  was  held  entitled  to  no  relief  against 
the  representatives  of  the  vendee  (c). 

§  145.  It  is  upon  the  same  ground  that  a  court  of  equity  proceeds, 
where  an  instrument  is  so  general  in  its  terms,  as  to  release  the 
rights  of  the  party  to  property,  and  he  was  wholly  ignorant  that  he  had 
any  title  thereto,  and  it  was  not  within  the  contemplation  of  the 
bargain  at  the  time  when  it  was  made.  In  such  cases  the  court 
restrains  the  instrument  to  the  purpose  of  the  bargain,  and  confines 
the  release  to  the  right  intended  to  be  released  or  extinguished. 

§  146.  It  is  not,  however,  sufficient  in  all  cases,  to  give  the  party 
relief,  that  the  fact  is  material;  but  it  must  be  such  as  he  could  not 
by  reasonable  diligence  get  knowledge  of,  when  he  was  put  upon 
inquiry.  For  if  by  such  reasonable  diligence  he  could  have  obtained 
knowledge  of  the  fact,  equity  will  not  relieve  him;  since  that  would 
be  to  encourage  culpable  negligence  (d). 

§  147.  Nor  is  it  in  every  case,  where  even  a  material  fact  is  mis- 
taken or  unknown  without  any  default  of  the  parties,  that  a  court  of 
equity  will  interpose.  The  fact  may  be  unknown  to  both  parties,  or 
it  may  be  known  to  one  party,  and  unknown  to  the  other.  If  it  is 
known  to  one  party,  and  unknown  to  the  other,  that  Will  in  some 
cases  afford  a  solid  ground  for  relief;  as,  for  instance,  where  it 
operates  as  a  surprise,  or  a  fraud,  upon  the  ignorant  party  (e).  But  in 
all  such  cases,  the  ground  of  relief  is,  not  the  mistake  or  ignorance  of 
material  facts  alone,  but  the  unconscientious  advantage  taken  of  the 
party  by  the  concealment  of  them  (/).  For  if  the  parties  act  fairly,  and 
it  is  not  a  case  where  one  is  bound  to  communicate  the  facts  to  the 
other,  upon  the  ground  of  confidence,  or  otherwise,  there  the  court 
will  not  interfere.  Thus,  if  A.,  knowing  that  there  is  a  mine  in  the 
land  of  B.,  of  which  he  knows  that  B.  is  ignorant,  should  buy  the  land 
without  disclosing  the  fact  to  B.,  for  a  price  in  which  the  mine  is  not 
taken  into  consideration,  B.  would  not  be  entitled  to  relief  from  the 
contract,  because  A.,  as  the  buyer,  is  not  obliged,  from  the  nature  of 
the  contract,  to  make  the  discovery  (g).    There  must  always  be  shown, 

(c)  Okill  V.  Whittaker,  1  De  G.  &  Sm.  83 ;  2  Ph.  338. 

id)  Undo  V.  Undo,  1  Beav.  496;  L.  <f  5.  W.  Ry.  v.  Blackmore,  L.  E.  4  H.  L. 
610;  Turner  v.  Turner,  14  Ch.  D.  829;  In  re  Perkins,  Poyser  v.  Beyfus,  [1898]  2  Ch. 
182.  And  see  Wason  v.  Wareing,  15  Beav.  151.  The  rule  of  the  civil  law  is  the 
same.  Sed  facti  ignoranti  ita  demum  cuique  Don  nocet,  si  non  ei  summa  negligentia 
objiciatur.  Quod  enim  si  omnes  in  civitate  sciant,  quod  ille  solus  ignorat?  Et  recte 
Labeo  definit,  scientiam  neque  curiosissimi  neque  negligentissimi  homipis  accipien- 
dam;  verum  ejus,  qui  earn  rem  diligenter  inquirendo  notam  habere  possit.  Big.  Lib. 
22,  tit.  6,  f.  9,  §  2;  Pothier,  Pand.  Lib.  22,  tit.  6,  §  4,  n.  11. 

(e)  Garrard  v.  Frankel,  30  Beav.  445 ;  Paget  v.  Marshall,  28  Ch.  D.  255. 

{/)  May  V.  Piatt,  [1900]  1  Ch.  616. 

ig)  Dolman  v.  Nokes,  22  Beav.  402;  affd.,  27  L.  T.  (O.S.)  178;  Coaks  v. 
Boswell,  11  App.  Ca's.  232. 

E.J.  5 


66  EQUITY   JURISPRUDENCE.  [CH.    V. 

either  the  mistake  of  both  parties,  or  the  mistake  of  one,  with  the 
fraudulent  concealment  of  the  other,  to  justify  a  court  of  equity  in 
reforming  a  contract  {h). 

§  148.  And  it  is  essential,  in  order  to  set  aside  such  a  transaction, 
not  only  that  an  advantage  should  be  taken;  but  it  must  arise  from 
some  obligation  in  the  party  to  make  the  discovery,  not  from  an 
obligation  in  point  of  morals  only,  but  of  legal  duty.  In  such  a  case 
the  court  will  not  correct  the  contract,  merely  because  a  man  of  nice 
morals  and  honour  would  not  have  entered  into  it.  It  must  fall 
within  some  definition  of  fraud  or  surprise.  For  the  rules  of  law 
must  be  so  drawn,  as  not  to  affect  the  general  transactions  of  man- 
kind, or  to  require  that  all  persons  should,  in  all  respects,  be  upon 
the  same  level  as  to  information,  diligence,  and  means  of  judgment. 
Equity  as  a  practical  system,  although  it  will  not  aid  immorality,  does 
not  affect  to  enforce  mere  moral  duties.  But  its  policy  is  to  administer 
relief  to  the  vigilant,  and  to  put  all  parties  upon  the  exercise  of  a 
searching  diligence.  Where  confidence  is  reposed,  or  the  party  is 
intenjiionally  misled,  relief  may  be  granted;  but  in  such  a  case  there 
is  the  ingredient  of  what  the  law  deems  a  fraud.  Cases  falling  under 
this  predicament  will  more  properly  come  in  review  in  a  subsequent 
part  of  this  work  (i). 

§  149.  A  like  principle  applies  to  cases  where  the  means  of  infor- 
mation are  open  to  both  parties;  and  where  each  is  presumed  to 
exercise  his  own  skill,  diligence,  and  judgment  in  regard  to  all 
extrinsic  circumstances.  In  such  cases  equity  will  not  relieve.  Thus, 
if  the  vendee  is  in  possession  of  facts,  which  will  materially  enhance 
the  price  of  a  commodity,  and  of  which  he  knows  the  vendor  to  be 
ignorant,  he  is  not  bound  to  communicate  those  facts  to  the  vendor, 
and  the  contract  will  be  held  valid.  It  has  been  justly  observed, 
that  it  would  be  difficult  to  circumscribe  the  contrary  doctrine  within 
proper  limits,  where  the  intelligence  is  equally  accessible  to  both 
parties.  And,  where  it  is  not,  the  same  remark  applies  with  the 
same  force,  if  it  is  not  a  case  of  mutual  confidence,  or  of  a  designed 
misleading  of  the  vendor.  Thus,  if  a  vendee  has  privat-e  knowledge 
of  a  declaration  of  war,  or  of  a  treaty  of  peace,  or  of  other  political 
arrangements  (in  respect  to  which  men  speculate  for  themselves), 
which  materially  affect  the  price  of  commodities,  he  is  not  bound  to 
disclose  the  fact  to  the  vendor  at  the  time  of  his  purchase;  but,  at 
least  in  a  legal  and  equitable  sense,  he  may  innocently  be  silent. 
For  there  is  no  pretence  to  say,  that  upon  such  matters  men  repose 
confidence  in  each  other,  any  more  than  they  do  in  regard  to  other 
matters  affecting  the  rise  and  fall  of  markets.  The  like  principle 
applies   to   all   other  cases,    where   the    parties    act   upon   their   own 

(h)  Wright  v.  Gojf,  22  Beav.  207 ;  The  Metropolitan  Counties  Society  v.  Brown, 
26  Beav.  454 ;  May  v.  Piatt,  [1900]  1  Ch.  616. 

U)  Pox  V.  Mackreth,  2  Bro.  C.  C.  420 ;  2  Cox,  168,  4  Bro.  P.  C.  258. 


§    148—152.]  MISTAKE.  67 

judgment  in  matters  mutually  open  to  them.  Thus,  if  an  agreement 
for  the  composition  of  a  cause  is  fairly  made  between  parties  with 
their  eyes  open,  a  court  of  equity  will  not  overhaul  it,  although  there 
has  been  a  great  mistake  in  the  exercise  of  their  judgment  (fe). 

§  150.  In  like  manner,  where  the  fact  is  equally  unknown  to  both 
parties;  or  where  each  has  equal  and  adequate  means  of  information, 
or  where  the  fact  is  doutbf ul  from  its  own  nature ;  in  every  such 
case,  if  the  parties  have  acted  with  entire  good  faith,  a  court  of 
equity  will  not  interpose.  For  in  such  cases  the  equity  is  deemed 
equal  between  the  parties;  and,  when  it  is  so,  a  court  of  equity  is 
generally  passive,  and  rarely  exerts  an  active  jurisdiction.  Thus, 
where  there  was  a  contract  by  A.  to  sell  to  B.,  for  £20,  such  an 
allotment,  as  the  commissioners  under  an  enclosure  Act  should  make 
for  him :  and  neither  party  at  the  tim^e  knew  what  the  allotment 
would  be,  and  were  equally  in  the  dark  as  to  the  value ;  the  contract 
was'  held  obligatory,  although  it  turned  out  upon  the  allotment  to 
be  worth  £200  (l).  The  like  rule  wUl  apply  to  all  cases  of  sale  of 
real  estate  or  personal  estate,  made  in  good  faith,  where  material 
circumstances,  affecting  the  value,  are  equally  unknown  to  both 
parties. 

§  151.  The  general  ground  upon  which  all  these  distinctions 
proceed,  is,  that  mistake  or  ignorance  of  facts  in  parties,  is  a  proper 
subject  of  relief,  only  when  it  constitutes  a  material  ingredient  in  the 
contract  of  the  parties,  and  disappoints  their  intention  by  a  mutual 
error ;  or  where  it  is  inconsistent  with  good  faith,  and  proceeds  from 
a  violation  of  the  obligations  which  are  imposed  by  law  upon  the 
conscience  of  either  party.  But  where  each  party  is  equally  innocent, 
and  there  is  no  concealment  of  facts  which  the  other  party  has  a  right 
to  know,  and  no  surprise  or  imposition. exists,  the  mistake  or  ignorance, 
whether  mutual  or  unilateral,  is  treated  as  laying  no  foundation  for. 
equitable  interference.     It  is  strictly  ddmnum  absque  injuria,  {m). 

§  152.  One  of  the  most  common  classes  of  cases,  in  which  relief 
is  sought  in  equity,  on  account  of  a  mistake  of  facts,  is  that  of  written 
agreements,  either  executory  or  executed.  Sometimes  by  mistake 
the  written  agreement  contains  less  than  the  parties  intended ;  some- 
times it  contains  more ;  and  sometimes  it  simply  varies  from  their 
intent  by  expressing  something  different  in  substance  from  the  truth 
of  that  intent.  In  all  such  cases,  if  the  mistake  is  clearly  made  out 
by  proofs  entirely  satisfactory,  equity  will  reform  the  contract,  so  as 
to  make  it  conformable  to  the  precise  intent  of  the  parties.  But  if 
the  proofs  are  doubtful  and  unsatisfactory,  and  the  mistake  is  not 
made  entirely  plain,  equity  will  withhold  relief;  upon  the  ground,  that 
the  written  paper  ought  to  be  treated  as  a  full  and  correct  expression 

(k)  Turner  v.  Green,  [1895]  2  Ch.  203.     See  Vernon  v.  Keys,  12  East.  632. 
(I)  Anon,  cited  in  Mortimer  v.  Capper,  1  Bro.  C.  C.  158. 
(m)  Okill  V.  Whittaker,  1  De  G.  &  Sm.  83 ;  2  Ph.  888. 


68  EQUITY   JURISPRUDENCE.  [CH.    V. 


of  the  intent,  until  the  contrary  is  established  beyond  reasonable 
controversy  (n). 

§  153.  It  has,  indeed,  been  said,  that  where  there  is  a  written 
agreement,  the  whole  sense  of  the  parties  is  presumed  to  be  comprised 
therein;  that  it  would  be  dangerous  to  make  any  addition  to  it  in 
cases  where  there  does  not  appear  to  be  any  fraud  in  leaving  out 
anything;  and  that  it  is  against  the  policy  of  the  law  to  allow  parol 
evidence  to  add  to,  or  vary  the  terms  of,  such  an  agreement  (o). 
As  a  general  rule,  there  is  certainly  much  to  recommend  this  doctrine. 
But  however  desirable  it  may  be,  as  a  matter  of  policy,  it  is  very 
certain,  that  courts  of  equity  will  grant  relief  upon  clear  proof  of  a 
mistake,  although  that  mistake  is  to  be  made  out  by  parol  evidence  (p). 
Lord  Hardwicke,  upon  an  occasion  of  this  sort,  said:  "  No  doubt  but 
this  court  has  jurisdiction  to  relieve  in  respect  of  a  plain  mistake  in 
contracts  in  writing  as  well  as  against  frauds  in  contracts;  so  that,  if 
reduced  in  writing  contrary  to  the  intent  of  the  parties,  on  proper 
proof  that  would  be  rectified "  (g).  And  this  doctrine  has  been 
recognized  upon  many  other  occasions. 

§  153a.  In  succeeding  paragraphs  the  learned  author  examined  the 
grounds  upon  which  the  jurisdiction  of  the  court  of  equity  to  rectify 
written  instruments  upon  evidence  of  mistake  could  be  rested.  The 
answer  has  been  since  supplied  by  two  eminent  judges.  "  Courts  of 
equity  do  not  rectify  contracts";  said  James,  V.-C,  "They  may  and 
do  rectify  instruments  purporting  to  have  been  iriade  in  pursuance  of 
the  terms  of  contracts.  But  it  is  always  necessary  for  a  plaintiff  to 
show  that  there  was  actual  concluded  contract  antecedent  to  the 
instrument  which  is  sought  to  be  rectified;  and  that  such  contract  is 
inaccurately  represented  in  the  instrument.  It  is  impossible  for  the 
court  to  rescind  or  alter  a  contract  with,  reference  to  the  terms  of  the 
negotiation  which  preceded  it  "  (r).  At  an  earlier  date  Turner,  L.J., 
said :  "In  order  to  induce  the  court  to  rectify  an  instrument  upon 
the  ground  of  mistake,  the  mistake  must  be  the  concurrent  mistake 
of  all  the  parties.  ...  I  take  this  to  be  the  rule  in  the  ordinary  case 
of  rectifying  mistakes  in  an  instrument  where  it  is  sought  to  alter  the 
instrument  in  any  prescribed  or  definite  mode,  and  for  this  reason, 
that  in  such  cases  it  is  necessary  to  prove  not  only  that  there  has  been 
a  mistake,  but  also  what  was  intended  to  be  done,  in  order  that  the 
instrument  may  be  set  right  according  to  what  was  so  intended,  for 

(n)  Davis  v.  Symonds,  1  Cox  404;  WooUam  v.  Hearn,  7  Yes.  211;  Fowler  v. 
Fowler,  2  De  G.  &  J.  250;  May  v.  Piatt,  [1900]  1  Ch.  616;  Beale  v.  Kyte,  [1907]  1 
Ch.  564. 

(o)  Imham  v.  Child,  1  Bro.  C.  C.  92,  93. 

(p)  Mortimer  v.  Shortall,  2  Dr.  &  War.  363;  Tucker  v.  Bennett,  38  Ch.  D.  1; 
Binhote  v.  Henderson,  [1895]  2  Ch.  202. 

(ij)  Henkle  v.  Royal  Assur.  Co.,  1  Ves.  Sen.  314. 

(r)  Mackenzie  v.  Coulson,  L.  R.  8  Eq.  375. 


§    153 158.]  MISTAKE.  69 

in  such  a  case,  if  the  parties  took  different  views  of  what  was  intended, 
there  would  be  no  contract  between  them  which  could  be  carried  into 
effect  by  rectifying  the  instrument  "  (s).  Now  it  will  be  observed  that 
a  court  of  equity  did  not,  any  more  than  did  a  court  of  law,  admit 
parol  evidence  to  vary  or  control  a  written  contract,  thci  evidence  went 
to  show  that  the  writing  did  not  express  the  terms  to  which  the 
parties  had  assented.  The  distinction  may  be  refined,  but  evidence  of 
a  similar  character  was  admissible  in  courts  of  the  common  law  (f): 
At  the  present  day,  when  in  one  and  the  same  action  a  party  may  sue 
for  rectification  of  a  written  instrument  and  to  enforce  the  instrument 
as  rectified  (m),  the  distinction  is  liable  to  be  missed. 

§  157.  Relief  will  be  granted  in  cases  of  written  instruments,  only 
where  there  is  a  plain  mistake,  clearly  made  out  by  satisfactory 
proofs  (a;).  It  is  true  that  this,  in  one  sense,  leaves  the  rule  some- 
what loose,  as  every  court  is  still  left  free  to  say  what  is  a  plain 
mistake,  and  what  are  proper  and  satisfactory  proofs.  But  this  is  an 
infirmity  incident  to  the  very  administration  of  justice,  for,  in  many 
cases,  judges  will  differ  as  to  the  result  and  weight  of  evidence;  and, 
consequently,  they  may  make  different  decisions  upon  the  same 
evidence  (y).  But  the  qualification  is  most  material,  since  it  cannot 
fail  to  operate  as  a  weighty  caution  upon  the  minds  of  all  judges, 
and  it  forbids  relief  whenever  the  evidence  is  loose,  equivocal,  or 
contradictory,  or  it  is  in  its  texture  open  to  doubt  or  to  opposing 
presumptions  (z).  The  rule  does  not  prevent  the  court  from  acting 
upon  the  uncontradicted  testimony  of  one  party  (a),  and  in  the  case 
of  a  deed  poll  this  course  is  inevitable  (b).  The  court  has  judged 
between  the  relative  values  of  the  testimonies  of  litigant  parties  (c), 
but  the  general  rule  has  long  ceased  to  be  contested  at  the  bar,  that 
the  burden  of  proof  is  upon  the  party  asserting  that  a  mistake  has 
been  in  fact  committed  (d). 

§  158.  Many  of  the  cases  included  under  this  head  come  within 
the  Statute  of  Frauds,  as  it  is  commonly  called,  which  requires  certain 
contracts  to  be  in  writing.  But  the  rule  as  to  rejecting  parol  evidence 
to  contradict  written  agreements  is  by  no  means  confined  to  such  cases. 
It  stands  as  a  goperal  rule  of  law,  independent  of  that  statute.     It  is 

(s)  Mackay  v.  Bentley,  4  De  G.  F.  &  J.  286.  See  Paget  v.  Marshall,  28  Ch.  D. 
255. 

(t)  Awde  V.  Dixon,  6  Ex.  869;  Holding  v.  FAliott,  5  H.  &  N.  117;  Rogers  v. 
Hadley,  2  H.  &  C.  227. 

(u)  Olley  V.  Fisher,  34  Ch.  D.  367. 

(a;)  Earl  of  Bradford  v.  Earl  of  Romney,  30  Beav.  431. 

(y)  See  Lord  Eldon's  remarks  in  Townsend  (Marg.)  v.  Stangroom,  6  Ves.  333,  334. 

iz)  Mortimer  v.  ShoHall,  2  Dr.  &  War.  363 ;  Foicler  v.  Fowler,  4  De  G-.  &  J.  250; 
May  V.  Plate,  [1900]  1  Ch.  616. 

(a)  Hanley  v.  Piarson,  13  Ch.  D.  545. 

(b)  Lady  Hood  of  Avalon  v.  Mackinnon,  [1909],  1  Ch.  476. 

(c)  Beale  v.  Kyte,  [1907]  1  Ch.  564. 

(d)  Wn'ght  v.  Golf,  22  Beav.  207. 


70  EQUITY   JURISPRUDENCE.  [CH.    V. 

founded  upon  the  ground  that  the  written  instrument  furnishes  better 
evidence  of  the  deliberate  intention  of  the  parties  than  any  parol  proof 
can  supply  (e).  And  the  exceptions  to  the  rule,  originating  in  accident 
and  mistake,  have  been  equally  applied  to  written  instruments  within 
and  without  th^  Statute  of  Frauds  (/). 

§  159.  The  relief  granted  by  courts  of  equity,  in  cases  of  this 
character,  is  not  confined  to  mere  executory  contracts,  by  altering 
and  conforming  them  to  the  real  intent  of  the  parties ;  but  it  is 
extended  to  solemn  instruments,  which  are  made  by  the  parties,  in 
pursuance  of  such  executory  or  preliminary  contracts.  And,  indeed, 
if  the  court  acted  otherwise,  there  would  be  a  great  defect  of  justice, 
and  the  main  evils  of  the  mistake  would  remain  irremediable.  Hence, 
in  preliminary  contracts  for  conveyances,  settlements,  and  other 
solemn  instruments,  the  court  acts  efficiently  by  reforming  the 
preliminary  contract  itself,  and  decreeing  a  due  execution  of  it,  as 
reformed,  if  no  conveyance  or  other  solemn  instrument  in  pursuance 
of  it  has  been  executed  {g).  And  if  such  conveyance  or  instrument  has 
been  executed,  it  reforms  the  latter  also,  by  making  it  such  as  the 
parties  originally  intended  (h). 

§  160.  There  is  less  difficulty  in  reforming  written  instruments 
where  the  mistake  is  mainly  or  wholly  made  out  by  other  preliminary 
written  instruments  or  memoranda  of  the  agreement.  The  danger  of 
public  mischief  or  private  inconvenience  is  far  less  in  such  cases 
than  it  is  in  eases  where  parol  evidence  is  admitted.  And,  accordingly, 
courts  of  equity  interfere  with  far  less  scruple  to  correct  mistakes  in 
the  former  than  in  the  latter  (i).  Thus,  marriage  settlements  are 
often  reformed  and  varied,  so  as  to  conform  to  the  previous  articles ; 
and  conveyances  of  real  estate  are  in  like  manner  controllable  by  the 
terms  of  the  prior  written  contract  (fc).  Memoranda  of  a  less  formal 
character  are  also  admissible  for  the  same  purpose  (I).  But  in  all 
such  cases  it  must  be  plainly  made  out  that  the  parties  meant,  in 
their  final  instruments,  merely  to  carry  into  effect  the  arrangements 
designated  in  the  prior  contract  or  articles.  For,  if  the  parties  are 
at  liberty  to  vary  the  original  agreement,  the  circumstances  of  the  case 

(e)  Woollam  v.  Hearn,  7  Ves.  218. 

(/)  MoTtimeT  v.  Shortall,  2  Dr.  &  War.  363;  Exp.  Nat.  Prov.  Bank  of  England, 
In  re  Boulter,  i  Ch.  D.  241 ;  Johnson  v.  Bragge,  [1901]  1  Ch.  28. 

(g)  Olley  v.  Fisher,  34  Ch.  D.  367. 

(h)  Duke  of  Bedford  v.  Marquis  of  Abercorn,  1  Myl.  &  Cr.  312;  Walker  v.  Arm- 
strong, 8  De  G.  M.  &  G.  581. 

(t)  Mortimer  v.  Shortall,  2  Dr.  &  War.  363;  Wolterbeek  v.  Barrow,  23  Beav. 
423;  Barroio  v.  Barrow,  18  Beav.  529;  Bonhote  v.  Henderson,  [1895]  1  Ch  742- 
affirmed,  [1895]  2  Ch.  202. 

(fc)  Legg  v.  Goldwire,  Cas.  t.  Talb.  20;  Bold  v.  Hutchinson,  6  De  G.  M.  &  G.  558; 
Lenty  v.  Hillas,  1  De  G.  &  J.  110;  Mignan  v.  Parry,  31  Beav.  211 ;  Cogan  v.  Duffield 
2  Ch.  D.  558;  Barkshire  v.  Grubb,  18  Ch.  D.  616. 

(!)  Motteux  v.  London  Assurance  Company,  1  Atk.  546 ;  Baker  v.  Paine  1  Ves 
Sen.  456. 


§    159—161.]  MISTAKE.  71 

lead  to  the  supposition  that  a  new  intent  has  supervened,  and  there 
can  be  no  just  claim  for  relief  upon  the  ground  of  mistake  (m).  The 
very  circumstance,  that  the  final  instrument  of  conveyance  or  settle- 
ment differs  from  the  preliminary  contract,  affords  of  itself  some 
presumption  of  an  intentional  change  of  purpose  or  agreement,  unless 
there  is  some  recital  in  it,  or  some  other  attendant  circumstance,  which 
demonstrates  that  it  was  merely  in  pursuance  of  the  original  contract. 
It  is  upon  a  similar  ground  that  courts  of  equity  act  in  holding 
that,  where  there  is  a  written  contract,  all  antecedent  propositions, 
negotiations,  and  parol  interlocutions  on  the  same  subject  are  to  be 
deemed  merged  in  such  contract  (n). 

§  161.  In  cases  of  asserted  mistake  in  written  contracts,  where  the 
mistake  is  to  be  established  by  parol  evidence,  the  question  has  often 
been  mooted,  how  far  a  court  of  equity  ought  to  be  active  in  granting 
relief,  by  a  specific  performance  in  favour  of  the  party  seeking  to 
reform  the  contract  upon  such  parol  evidence,  and  to  obtain  per- 
formance of  it,  when  it  shall  stand  reformed.  It  is  admitted  that  a 
defendant,  against  whom  a  specific  performance  of  a  written  agreement 
is  sought,  may  insist,  by  way  of  answer,  upon  the  mistake,  as  a  bar  to 
an  action ;  because  he  may  insist  upon  any  matter  which  shows  it 
to  be  inequitable  to  grant  such  relief.  A  court  of  equity  is  not  bound 
to  enforce  a  written  contract ;  but  it'  may  exercise  its  discretion  when 
a  specific  performance  is  sought  (o).  It  will  not,  therefore,  interfere  to 
sustain  an  action  for  specific  performance,  when  it  would  be  against 
conscience  and  justice  so  to  do.  On  the  other  hand,  it  seems  equally 
clear  that  a  party  may,  as  plaintiff,  have  relief  against  a  written 
contract,  by  having  the  same  set  aside  and  cancelled,  or  modified, 
whenever  it  is  founded  in  a  mistake  common  to  both  parties  of 
material  facts,  and  it  would  be  unconscientious  and  unjust  for  the 
other  party  to  enforce  it  at  law  or  in  equity  (p).  The  learned  author 
then  adverted  to  the  case  where  the  party  plaintiff  seeks,  not  to  set 
aside  the  agreement,  but  to  enforce  it,  when  it  is  reformed  and  varied 
by  the  parol  evidence.  It  is  now  settled  that  the  courts  will  admit 
parol  evidence  to  establish  a  mistake  in  a  written  agreement,  and 
then  to  enforce  it,  as  varied  and  established  by  that  evidence,  if  the 
mistake  be  common  to  all  parties  to  the  contract  so  as  to  permit  of 
rectification,  but  not  further  or  otherwise  (g). 

(m)  Legg  v.  Goldwire,  Cas.  t.  Talb.  20;  Cook  v.  Fryer,  1  Hare,  498.  See  Essery 
v.  Cowlard,  26  Ch.  D.  191;  Bond  v.  Walford,  32  Ch.  D.  238. 

(n)  Rich  V.  Jackson,  i  Bro.  C.  C.  513;  Wace  v.  Bickerton,  3  De  G.  &  Sm.  7.51; 
Joliffe  V.  Baker,  11  Q.  B.  D.  255. 

(o)  Clark  v.  Grant,  14  Ves.  519;  Clowes  v.  Higginson,  1  Ves.  &  B.  524;  Winch 
V.  Winchester,  1  Ves.  &  B.  375;  Watson  w.Marston,  4  De  G.  M.  &  G.  230 ;  Baxendale 
V.  Seale,  19  Beav.  601;  In  re  Hare  S  O'More's  Cont.,  [1901]  1  Ch.  93. 

(p)  See  Ball  v.  Storie,  1  Sim.  &  Stu.  210;  Metropolitan,  Counties,  Sop.  v.  Brown, 
20  Beav.  454. 

(g)  Olley  v.  Fisher,  34  Ch.  D.  367.  See  Woollam  v.  Hearn,  7  Ves.  211;  May  v. 
Piatt,  [1900]  1  Ch.  616. 


72  EQUITY   JURISPRUDENCE.  [CH.    V. 

§  162.  Courts  of  equity  have  granted  relief  in  cases  of  mistake  in 
written  contracts,  not  only  when  the  fact  of  the  mistake  is  expressly 
established,  but  also  when  it  is  fairly  implied  from  the  nature  of  the 
transaction.  Thus,  in  cases  where  there  had  been  a  joint  loan  of 
money  to  two  or  more  obligors,  and  they  were  by  the  instrument  made 
jointly  liable,  but  not  jointly  and  severally,  the  court  has  reformed 
the  bond,  and  made  it  joint  and  several,  upon  the  presumption,  from 
the  nature  of  the  transaction,  as  in  the  case  of  a  loan  to  a  partnership, 
that  it  was  so  intended  by  the  parties,  and  was  omitted  by  want  of 
skill  or  by  mistake  (r).  Sir  William  Grant,  M.E.,  insisted  (s)  that  the 
presumption  was  only  applicable  to  partnership  cases,  but  there  was  a 
belief  in  some  quarters  that  every  contract  for  a  joint  loan  was  in 
equity  to  be  deemed,  as  to  the  parties  borrowing,  a  joint  and  several 
contract,  whether  the  transaction  were  of  a  mercantile  nature  or  not. 
And  as  regards  the  liability  of  partners  the  mistake  has  arisen  from 
attempting  to  evolve  a  general  rule  from  particular  instances,  it  being 
now  well  settled  that  the  liability  of  partners  upon  a  contract  of  loan 
is  not  necessarily  joint  and  several,  but  dependent  upon  the  conditions 
of  the  transaction,  and  presumably  a  joint  liability  (t). 

§  163.  But  where  thfe  inference  of  a  joint  original  debt  or  liability 
was  absent,  a  court  of  equity  would  not  interfere ;  for,  in  such  a  case, 
there  was  no  ground  to  presume  any  mistake  (u).  This  doctrine  has 
been  very  clearly  expounded  by  Sir  William  Grant.  "  When  "  (says 
he)  "  the  obligation  exists  only  in  virtue  of  the  covenant,  its  extent 
can  be  measured  only  by  the  words  in  which  it  is  conceived.  A 
partnership  debt  has  been  trea;ted  in  equity  as  the  several  debt  of  each 
partner,  although  at  law  it  is  only  the  joint  debt  of  all.  But,  there, 
all  the  partners  have  had  a  benefit  from  the  money  advanced,  or  the 
credit  given;  and  the  obligation  of  all  to  pay  exists,  independently  of 
any  instrument,  by  which  the  debt  may  have  been  secured.  So, 
where  a  joint  bond  has  in  equity  been  considered  as  several,  there 
has  been  a  credit  previously  given  to  the  different  persons  who  have 
entered  into  the  obligation.  It  is  not  the  bond  that  first  created  the 
liability  to  pay  "  (x). 

§  164.  It  is  upon  the  same  ground,  that  a  court  of  equity  will  not 
reform  a  joint  bond  against  a  mere  surety,  so  as  to  make  it  several 
against  him,  upon  the  presumption  of  a  mistake  from  the  nature  of 
the  transaction ;  but  it  will  require  positive  proof  of  an  express  agree- 
ment by  him,   that  it  should  be  several  as  well   as  joint  (y).     And 

(r)  Bishop  v.  Church,  2  Ves.  Sen.  100,  371;  Sleech's  Case,  1  Meriv.  538,  539; 
Sumner  v.  Powell,  2  Meriv.  30. 

(s)  See  Sumner  v.  Powell,  2  Meriv.  at  pp.  35,  36.  See  also  Richardson  v.  Norton, 
6  Beav.  185. 

({)  Kendall  v.  Hamilton,  4  App.  Caa.  504;  Scarf  v.  Jardine,  7  App.  Cas.  845. 

(u)  Richardson  v.  Horton,  6  Beav.  185. 

(i)  Sumner  v.  Powell,  2  Meriv.,  at  p.  36. 

iy)  Sumner  v.  Powell,  2  Meriv.  30. 


§    162 167.]  MISTAKE.  73 

in  other  cases,  where  the  obligation  or  covenant  is  purely  matter  of 
arbitrary  convention,  not  grovi'ing  out  of  any  antecedent  liability  in 
all  or  any  of  the  obligors  or  covenantors  to  do  what  they  have 
undertaken  (as,  for  example,  a  bond  or  covenant  of  indemnity  for  the 
acts  or  debts  of  third  persons),  a  court  of  equity  will  not  by  implication 
extend  the  responsibility  from  that  of  a  joint  to  a  joint  and  several 
undertaking  (z).  But  if  there  be  an  express  agreement  to  the  effect 
that  an  obligation  or  other  contract  s.hall  be  joint  and  several,  or  to 
any  other  effect,  and  it  is  omitted  by  mistake  in  the  instrument,  a 
court  of  equity  will,  under  such  circumstances-,  grant  relief  as  fully 
against  a  surety  or  guarantee,  as  against  the  principal  party. 

§  165.  In  all  cases  of  mistake  in  written  instruments,  courts  of 
equity  will  interfere  only  as  between  the  original  parties,  or  those 
claiming  under  them  in  privity,  such  as  personal  representatives,  heirs, 
devisees,  legatees,  assignees,  voluntary  grantees,  or  judgment  creditors, 
or  purchasers  from  them,  with  notice  of  the  facts  (a).  As  against 
bond  fide  purchasers  for  a  valuable  consideration  without  notice,  courts 
of  equity  will  grant  no  relief;  because  they  have,  at  least,  an  equal 
equity  to  the  protection  of  the  court  (6). 

§  166.  The  learned  author  suggested  that  as  equity  would  grant 
relief  in  cases  of  mistake  in  written  instruments,  to  prevent  manifest 
injustice  and  wrong,  and  to  suppress  fraud,  it  would  also  grant  relief 
and  supply  defects,  where,  by  mistake,  the  parties  have  omitted  any 
acts  or  circumstances  necessary  to  give  due  validity  and  effect  to 
%vritt€n  instruments.  Equity  would,  no  doubt,  supply  defect  of 
circumstances  in  conveyances,  occasioned  by  mistake,  as  of  livery  of 
seisin  in  the  passing  of  a  freehold,  or  of  a  surrender  in  case  of  a 
copyhold,  or  the  like ;  but  to  this  extent  its  jurisdiction  was  limited. 
It  does  not  seem,  for  instance,  that  a  court  of  equity  could  supply  the 
want  of  a  seal,  in  order  to  render  an  instrument  valid  as  a  deed  (c), 
or  validate  an  award  made  by  an  arbitrator  who,  by  reason  of  a  prior 
award,  was  functus  officio,  although  the  prior  award  omitted  a  material 
clause  ((f). 

§  167.  The  same  principle  applies  to  cases  where  an  instrument 
has  been  delivered  up,  or  cancelled,  under  a  mistake  of  the  party,  and 
in  ignorance  of  the  facts  material  to  the  rights  derived  under  it.  A 
court  of  equity  will  in  such  cases  grant  relief,  upon  the  ground,  that 
the  party  is  conscientiously  entitled  to  enforce  such  rights;  and  that 
he  ought  to  have  the  same  benefit  as  if  the  instrument  were  in  his 
possession  with  its  entire  original  validity  (e).     In  this  the  Court  of 

(z)  Sumner  v.  Powell,  2  Meriv.  30,  35,  36;  Richardson  v.  Horton,  6  Beav.  186. 

(a)  Warrick  v.  Warrick,  3  Atk.  293;  Com.  Dig.  Chancery,  2  C.  2;  4  J.  4. 

(b)  Warrick  v.  Warrick,  3  Atk.  290,  293;  Garrard  v.  Frankel,  30  Beav.  445. 

(c)  Nat.  Prov.  Bk.  v.  Jackson,  33  Ch.  D.  1;  In  re  Smith,  Oswell  v.  Shepherd, 
67  L.  J.  64. 

(d)  Mordue  v.  Palmer,  L.  R.  6  Ch.  22. 

(e)  East  India  Go.  v.  Donald,  9  Ves.  275;  East  India  Go.  v.  Neave,  5  Ves.  173. 


74  EQUITY   JDHISPRUDENCE.  [CH     V. 

Chancery  frequently  only  applied  its  active  remedies  to  common  law 
rights  (/). 

§  168.  x\nd,  for  the  same  reason,  equity  will  give  effect  to  the  real 
intentions  of  the  parties,  as  gathered  from  the  objects  of  the  instru- 
ment, and  the  circumstances  of  the  case,  although  the  instrument 
may  be  drawn  up  in  a  very  inartificial  and  untechnical  manner.  For, 
however  just  in  general  the  rule  may  be,  "  quoties  in  verbis  nulla  est 
ambiguitas,  ibi  nulla  expositio  contra  verba  expressa  fienda  est  "  (g); 
yet  that  rule  shall  not  prevail  to  defeat  the  manifest  intent  and  object 
of  the  parties,  where  it  is  clearly  discernible  on  the  face  of  the  instru- 
ment, if  the  ignorance  or  blunder  or  mistake  of  the  parties  has  caused 
them  to  use  inappropriate  language.  Thus,  if  one  in  consideration  of 
natural  love  should  execute  a  feoffment,  or  a  lease  and  release,  or  a 
bargain  and  sale,  it  would,  notwithstanding  the  use  of  the  technical 
words,  be  held  to  operate  as  a  covenant  to  stand  seised  (h).  And  the 
same  rule  would  be  applied  if,  under  the  like  circumstances,  instead 
of  the  words  "  bargain  and  sell,"  the  words  "  give  and  grant,"  or 
"  enfeoff,  alien,  and  confirm,"  should  be  used  in  a  deed  ()').  But  here 
again  the  courts  of  common  law  had  abandoned  refinements  (fe). 

§  169.  There  is  also  another  marked  instance  of  the  application  of 
the  remedial  authority  of  courts  of  equity;  that  is,  to  the  execution 
of  powers.  In  no  case  will  equity  interfere  where  there  has  been 
a  non-execution  of  a  power,  as  contradistinguished  from  a  trust;  but 
if  a  trust  be  coupled  with  a  power,  there  (as  we  shall  presently  see) 
the  trust  will  be  enforced,  notwithstanding  the  force  of  the  power 
does  not  execute  it  (L).  But,  if  there  be  a  defective  execution,  or 
attempt  at  execution  of  a  mere  power,  there  equity  will  interpose, 
and  supply  the  defect,  not  universally,  indeed,  but  in  favour  of 
parties  for  whom  the  person  entrusted  with  the  execution  of  the 
power  is  under  a  moral  or  legal  obligation  to  provide  by  an  execution 
of  the  power.  Thus,  such  a  defective  execution  will  be  aided  in 
favour  of  persons  st-anding  upon  a  valuable  or  a  meritorious  con- 
sideration ;  such  as  a  bond  fide  purchaser  for  a  valuable  consideration, 
a  creditor,  a  wife,  and  a  legitimate  child  (m) ;  unless,  indeed,  such 
aid  of  the  defective  execution  would,  under  all  the  circumstances,  be 
inequitable  to  other  persons;  or  it  is  repelled  by  some  counter 
equity.  Indeed,  if  a  general  power  to  raise  money  for  any  purposes 
be  given,  so  that  the  donee  of  the  power  may,  if  he  choose,  execute 
it  in  his  own  favour,  and  he  should  execute  it  in  favour  of  mere  volun- 

(/)  BaHlett  v.  Pentland,  10  B.  &  C.  760. 
(g)  1  Co.  Litt.  147  u.. 

(h)  Stapilton  v.  StapiUon,  1  Atk.  8;  Smith  v.  Packhurst,  3  Atk.  136. 
(i)  Harrison  v.  Austin,  3  Mod.  237. 

(k)  Doe  d.  Dailies,  2  M.  &  W.  608;  Wilson  v.  Wilson,  1  H.  L.  C.  538. 
(!)  Brown  v.  Higgs,  8  Ves.  570;  Holmes  v.  Coghill,  7  Vee.  499;  12  Ves.  206; 
Burrough  v.  Philcox,  5  My].  &  Cr.  73. 

(m)  Fothergill  v.  Fothergill,  2  Preem.  266,  257;  Sugden,  Powers,  Ch.  11. 


§    168—171.]  MISTAKE.  75 

teers,  there  a  court  of  equity  will,  in  favour  of  creditors,  deem  the 
money  assets  against  the  volunteers,  upon  the  ground  that  the  donee 
of  the  power  has  an  absolute  dominion  over  the  power  and  the 
property. 

§  170.  The  reason  for  this  distinction,  between  the  non-execution 
of  a  power  and  the  defective  execution  of  it,  has  been  stated  with 
great  clearness  and  precision  by  Varny,  M.R.  "  The  difference  " 
(he  said)  "  ie  betwixt  a  non-execution  and  a  defective  execution  of  a 
power.  The  latter  will  always  be  aided  in  equity  under  the  circum- 
stances mentioned;  it  being  the  duty  of  every  man  to  pay  his  debts, 
and  of  a  husband  or  father  to  provide  for  his  wife  or  child.  But 
this  court  will  not  help  the  non-execution  of  a  power,  which  is  left 
to  the  free  will  and  election  of  the  party,  whether  to  execute  or  not; 
for  which  reason  equity  will  not  say  he  shall  execute  it;  or  do  that 
for  him  which  he  does  not  think  fit  to  do  for  himself  "  (n).  Indeed,  a 
court  of  equity,  by  acting  otherwise  in  the  ease  of  a  non-execution  of 
a  power,  would,  in  effect,  deprive  the  party  of  all  discretion  as  to  the 
exercise  of  it;  and  would  thus  overthrow  the  very  intention  mani- 
fested by  the  parties  in  the  creation  of  the  power.  On  the  contrary, 
when  the  party  undertakes  to  execute  a  power,  but,  by  mistake,  does 
it  imperfectly,  equity  will  interpose  to  carry  his  very  intention  into 
effect,  and  that,  too,  in  aid  of  those  who  are  peculiarly  within  its 
protective  favour ;  that  is,  creditors,  purchasers,  wives,  and  chil- 
dren (o). 

§  171.  What  shall  constitute  an  execution,  or  preparatory  steps  or 
attempts  towards  the  execution  of  a  power,  entitling  the  party  to 
relief  in  equity  on  the  ground  of  a  defective  execution,  has  been 
largely  and  liberally  interpreted.  It  is  clear  that  it  is  not  sufficient 
that  there  should  be  a  mere  floating  and  indefinite  intention  to 
e:Secute  the  power,  without  some  steps  taken  to  give  it  a  legal  effect. 
Some  steps  must  be  taken,  or  some  acts  done,  with  this  sole  and 
definite  intention,  and  be  such  as  are  properly  referable  to  the 
power  (p).  Lord  Mansfield,  at  one  time,  contended,  that  whatever  is 
an  equitable,  ought  to  be  deemed  a  legal,  execution  of  a  power, 
because  there  should  be  a  uniform  rule  of  property;  and  that,  if 
courts  of  equity  would  presume  that  a  strict  adherence  to  the  precise 
form,   pointed  out  in  the  creation  of  the  power,   was  not  intended, 

(n)  Tollett  v.  Tollett,  2  P.  Will.  490.  See  also  Crosslinc^  v.  CrossUng,  2  Cox  396. 
Sir  William  Grant,  in  Holmes  v.  Coghill  (7  Ves.  506),  and  Lord  Erskine,  in  the 
same  case  on  appeal  (12  Ves.  212),  have  expressed  dissatisfaction  with  this  distinction, 
as  not  quite  consistent  with  the  principles  of  law  or  equity,  though  fully  established 
by  authority. 

(o)  Moodie  v.  Reid,  1  Mad.  516. 

(p)  Dowell  V.  Dew,  1  Y.  &  C.  Ch.  345;  In  re  Dyke's  Estate,  L.  K.  7  Bq.  337. 
There  must  be  a  distinct  intention  to  execute  the  power.  Garth  v.  Townsend,  L.  B. 
7  Eq.  220. 


76  EQUITY   JURISPRUDENCE.  [CH     V. 

and  therefore  not  necessary,  the  same  rule  should  prevail  at  law  (g). 
But  this  doctrine  has  been  overruled.  And  indeed,  courts  of  equity 
do  not  deem  the  power  well  executed  unless  the  form  is  adhered  to; 
but  in  cases  of  a  meritorious  consideration  they  supply  the  defect  (r). 

§  172.  And  relief  will  be  granted,  not  only  when  the  defect  arises 
from  an  informal  instrument,  not  within  the  scope  of  the  power,  but 
also  when  the  defect  arises  from  the  improper  execution  of  the 
appropriate  instrument.  All  that  is  necessary  is,  that  the  intention  to 
execute  the  power  should  clearly  appear  in  writing.  Thus,  if  the 
donee  of  a  power  merely  covenant  to  execute  it;  or,  by  his  will, 
desire  the  remainderman,  to  create  the  estate ;  or  enter  into  a  con- 
tract not  under  seal,  to  execute  the  power;  or  by  letters  promise  to 
grant  an  estate,  which  he  can  execute  only  by  the  instrumentality  of 
the  power;  in  all  these,  and  the  like  cases,  equity  will  supply  the 
defect.  And  even  an  answer  to  a  bill  of  complaint,  stating  that  the 
party  appointed,  and  intended  by  a  writing  in  due  form  to  appoint  the 
fund,  was  deemed  to  be  an  execution  of  the  power  for  this  purpose  (s). 

§  173.  The  like  rule  prevails,  where  the  instrument  selected  is  not 
that  prescribed  by  the  power;  provided  it  is  not  in  its  own  nature 
repugnant  to  the  true  object  of  the  creation  of  the  power.  Thus,  if 
the  power  ought  to  be  executed  by  a  deed,  but  it  is  execui^ed  by  a 
will,  the  defective  execution  will  be  aided  (f).  But,  if  the  power  ought 
to  be  executed  by  a  will,  and  the  donee  of  the  power  should  execute 
a  conveyance  of  the  estate  by  a  deed  not  containing  a  power  of  revoca- 
tion, the  deed  will  be  invalid ;  because  such  a  conveyance,  if  it  avail  to 
any  purpose,  must  avail  to  the  immediate  destruction  of  the  power, 
since  it  would  no  longer  be  revocable,  as  a  will  would  be.  The  inten- 
tion of  the  power,  in  its  creation,  was  to  reserve  an  entire  control  over 
its  execution,  until  the  moment  of  the  death  of  the  donee;  and  this 
intention  would  be  defeated  by  any  other  instrument  than  a  will  («)• 
An  act  done,  not  strictly  according  to  the  terms  of  the  power,  but 
consistent  with  its  intent,  may  be  upheld  in  equity.  But  an  act,  which 
Violates  the  very  purpose  for  which  the  power  was  created,  and  the 
very  control  over  it  which  it  meant  to  vest  in  the  donee,  is  repugnant  to 
it,  and  cannot  be  deemed,  in  any  just  sense,  to  be  an  execution  of 
it  (x). 

§  174.  The  Court  of  Chancery  would  have  interposed  formerly  to 
supply  a  defective  execution  of  a  power  by  will  (y) ;  but  this  power  is 

(g)  Darlington  v.  Pulteney,  Cowp.  267. 

(r)  Sugden  on  Powers,  ch.  11. 

(s)  Carter  v.  Carter,  Moseley  365. 

(t)  Tollett  V.  Tollett,  2  P.  "Will.  489;  Sneyd  v.  Sneyd,  Ambl.  64,  Sugden,  Powers, 
558  n.  (II). 

(u)  Reid  V.  Shergold,  10  Ves.  370. 

(x)  See  Bainbridge  v.  Smith,  8  Sim.  86;  ante,  §  97.  See  Wills  Act,  1  Vict.  c.  26, 
8.  10. 

(j)  Wade  v.  Paget,  1  Bro.  C.  C.  363;  Gullan  v.  Grove,  26  Beav.  64. 


§    172—177.]  MISTAKE.  77 

taken  away,  where  the  objection  is  as  to  form  of  execution,  by  section 
10  of  the  Wills  Act,  1837  (1  Vict.  c.  26)  (z).  Equity  will  also,  in  many 
cases,  grant  relief,  where,  by  mistake,  a  different  kind  of  estate  or 
interest  is  given  from  that  which  is  authorised  by  the  power,  or  where 
there  is  an  excess  of  the  power  (.a). 

§  175.  In  all  these  cases  it  is  to  be  understood  that  the  intention 
and  objects  of  the  power  are  not  defeated  or  put  aside ;  but  that  they 
are  only  attempted  by  the  party  to  be  carried  into  effect  by  informal 
documents.  But  where  there  is  a  defect  of  substance  in  the  execution 
of  the  power,  such  as  the  want  of  co-operation  of  all  the  proper  parties 
in  the  act,  there  equity  will  not  aid  the  defect  (b). 

§  176.  But  in  all  these  cases  of  relief  by  aiding  and  correcting 
defects  or  mistakes  in  the  execution  of  instruments  and  powers, 
the  party  asking  relief  must  stand  upon  some  equity  superior  to 
that  of  the  party  against  whom  he  asks  it.  If  the  equities  are  equal, 
a  court  of  equity  is  silent  and  passive  (c).  Thus,  equity  will  not 
relieve  one  person,  claiming  under  a  voluntary  defective  conveyance, 
against  another,  claiming  also  under  a  voluntary  conveyance;  but 
will  leave  the  parties  to  their  rights  at  law  (d).  For,  regularly,  equity 
is  remedial  to  those  only  who  come  in  upon  an  actual  consideration  ; 
and,  therefoire,  there  should  be  some  consideration,  equitable  or  other- 
wise, expressed  or  implied.  But  there  are  excepted  eases,  even 
from  this  rule ;  for  a  defective  execution  has  been  aided  in  favour  of 
a  volunteer,  where  a  strict  compliance  with  the  power  has  been 
impossible  from  circumstances  beyond  the  control  of  the  party;  ae 
where  the  prescribed  witnesses  could  not  be  found;  or  where  an 
interested  party,  having  possession  of  the  deed  creating  the  power, 
has  kept  it  from  the  sight  of  the  party  executing  the  power,  so  that 
he  could  not  ascertain  the  formalities  required. 

§  177.  For  the  same  reason  equity  will  not  aid  the  defective  exe- 
cution of  a  power,  to  the  disinheritance  of  the  heir-at-law.  Neither 
will  it  do  this  in  favour  of  creditors,  where  there  are,  otherwise,  assets 
sufficient  to  pay  their  debts;  nor  against  a  purchaser  for  a  valuable 
consideration  without  notice.  And  there  are  other  cases  of  the 
defective  execution  of  powers,  where  equity  will  not  interfere;  as,  for 
instance,  in  regard  to  powers  which  are  in  their  own  nature  statutable, 
where  equity  must  follow  the  law,  be  the  consideration  ever  so 
meritorious.  Thus,  the  power  of  a  tenant  in  tail  to  make  leases  under 
a  statute,  if  not  executed  in  the  requisite  form  prescribed  by  the 
statute,    will  not  be  made   available  in   equity,   however  meritorious 


(2)  In  re  Barnett,  Dawes  v.  Ixer,  [1908J  1  Ch.  402. 

(a)  Sugden  on  Powers,  oh.  11  (8th  edit.). 

(b)  Thackwell  v.  Gardiner,  5  De  G.  &  Sm.  58;  Cooper  v.  Martin,  L.  E.  3  Ch.  47; 
Phillips  v.  Gayley,  43  Ch.  D.  222;  In  re  Lane,  Belli  v.  Lane,  [1908]  2  Ch.  581. 

(c)  See  Sugdfn  on  Powers,  ch.  11  (8th  edit.). 

(d)  Moodie  v.  Reid,  1  Mad.  516;  Hughes  v.  Wells,  9  Ha.  749. 


78  EQUITY   JURISPRUDENCE.  [CH.    V. 

ihe  consideration  may  be  (/).  And  indeed  it  may  be  stated  as  gener- 
ally, although  not  universally  true,  that  the  remedial  power  of  courts 
.of  equity  does  not  extend  to  the  supplying  of  any  circumstance,  for 
the  want  of  which  the  legislature  has  declared  the  instrument  void; 
for,  otherwise,  equity  would,  in  effect,  defeat  the  very  policy  of  the 
legislative  enactments  (g). 

§  178.  Upon  one  or  both  of  these  grounds,  either  that  there  is 
no  superior  equity,  or  that  it  is  against  the  policy  of  the  law,  the 
remedial  power  of  courts  of  equity  did  not  extend  to  the  case  of 
a  defective  fine,  as  against  the  issue,  or  of  a  defective  recovery,  as 
against  a  remainderman;  unless,  indeed,  there  was  something  in  the 
transaction  to  affect  the  conscience  of  the  issue,  or  the  remainder- 
man. 

§  179.  In  regard  to  mistakes  in  wills,  there  is  no  doubt  that 
courts  of  equity  have  jurisdiction  to  correct  them,  when  they  are 
apparent  on  the  face  of  the  will,  or  may  be  made  out  by  a  due 
construction  of  its  terms;  for  in  cases  of  wills  the  intention  will 
prevail  over  the  words.  But,  then,  the  mistake  must  be  apparent 
on  the  face  of  the  will,  otherwise  there  can  be  no  relief;  for,  parol 
evidence,  or  evidence  dehors  the  will,  is  not  admissible  to  vary  or 
control  the  terms  of  the  will,  although  it  is  admissible  to  remove  a 
latent  ambiguity  {h).  So  far  the  learned  author.  But  it  is  quite 
obvious  that  he  failed,  in  the  foregoing  and  in  the  subsequent  passages, 
to  emphasize  inferentially  or  in  the  text  that  the  intention  to  which  the 
court  gives  effect  is  the  expressed  intention  of  the  testator.  The  cases 
which  he  cited,  and  the  illustrations  which  he  gave,  must  be  referred 
to  the  rules  of  interpretation;  e.g.,  is  a  gift  to  a  "  husband  "  or  "  wife  " 
.or  "  widow  "  of  the  testatrix,  or  testator,  or  other  person,  conditional 
upon  a  valid  marriage  (i),  or  where  a  testator  revokes  a  will  stating 
as  his  reason  that  the  legatees  are  dead,  which  is  treated  as  a 
conditional  revocation  (k). 

(/)  Darlington  v.  Pulteney,  Cowp.  267;  Rosswell's  case,  1  EoUe,  Ab.  379,  pi.  6. 

(9)  Curtis  V.  Perry,  6  Ves.  739;  Mestaer  v.  Gillespie,  XI  Ves.  621;  Thompson  v. 
Leake,  1  Mad.  39 ;  Thompson  v.  Smith,  1  Mad.  395 ;  Hughes  v.  Morris,  2  De  Q.  M.  & 
O.  349;  In  re  Frieze- Green's  Patent,  [1907]  A.  C.  460. 

(h)  Milner  v.  Milner,  1  Ves.  Sen.  106;  Danvers  v.  Manning,  2  Bro.  C.  C.  18; 
1  Cox  203;  Campbell  v.  Frenph,  3  Ves.  321. 

(f)  Giles  V.  Giles,  1  Keen,  685;  Wilkinson  v.  Jonghin,  L.  R.  2  Eq.  319;  In  re 
Boddington,  Boddington  v.  Glariat,  25  Ch.  D.  685 ;  In  re  Wagstajf,  Wagstajf  v 
Jalland,  [1908]  1  Ch.  162. 

(&)  Campbell  v.  French,  3  Ves.  361. 


§  178 185.]  ACTUAL  FRAUD.  79 


CHAPTER  VI. 

ACTUAL  OR  POSITIVE  FRAUD. 

§  184.  Let  us  now  pass  to  another  great  head  of  Concurrent  juris- 
diction in  equity,  that  of  fraud.  And  here  it  may  be  laid  down  as  a 
general  rule,  subject  to  few  exceptions,  that  courts  of  equity  exercise 
a  general  jurisdiction  in  cases  of  fraud,  sometimes  concurrent  with, 
and  sometimes  exclusive  of,  other  courts.  It  has  been  already  stated, 
that  in  a  great  variety  of  cases  fraud  is  remediable,  and  effectually 
remediable  at  law  (a).  Nay,  in  certain  cases,  such  as  fraud  in  obtain- 
ing a  will,  whether  of  personal  estate,  or  real  estate,  the  proper  remedy 
was  exclusively  vested  in  other  courts  prior  to  the  Judicature  Act, 
1873;  in  wills  of  personal  estate,  in  the  Court  of  Probate  (&),  and  in 
wills  of  real  estates,  in  the  courts  of  common  law  (o).  But  there 
are  many  cases,  in  which  fraud  was  utterly  irremediable  at  law;  and 
courts  of  equity,  in  relieving  against  it,  often  went,  not  only  beyond, 
but  even  contrary  to,  the  rules  of  law  (d).  And  with  the  exception 
of  wills,  as  above  stated,  courts  of  equity  may  be  said  to  possess  a 
general,  and  perhaps  a  universal,  concurrent  jurisdiction  with  courts 
of  law  in  cases  of  fraud,  cognizable  in  the  latter;  and  exclusive  juris- 
diction in  cases  of  fraud  beyond  the  reach  of  the  courts  of  law  (e). 

§  185.  The  jurisdiction  in  matters  of  fraud  is  probably  coeval 
with  the  existence  of  the  Court  of  Chancery;  and  it  is  equally 
probable,  that,  in  the  early  history  of  that  court.,  it  was  principally 
exercised  in  matters  of  fraud  not  remediable  at  law  (/).  Its  present 
active  jurisdiction  took  its  rise  in  a  great  measure  from  the  abolition  of 
the  Court  of  Star  Chamber,  in  the  reign  of  Charles  the  First  {g) ;  in 
which  court  the  plaintiff  was  not  only  relieved,  but  the  defendant  was 
punished  for  his  fraudulent  conduct.  So  that  the  interposition  of 
chancery  before  that  period  was  generally  unnecessary    (h). 

(a)  Ante,  §§  59,  60;   3  Black.  Coram.  431;  1  Fonbl.  Bq.  B.  1,  ch.  2,  §  3,  note  (r). 

(b)  Allen  v.  McPherson,  1  H.  L.  C.  191 ;  Meluish  v.  Milton,  3  Ch.  D.  27. 

(c)  3  Black.  Gomm.  451 ;  Pemberton  v.  Pemberton,  13  Ves.  297. 

(d)  Cf.  Adam  v.  Newbigging,  13  App.  Cas.  308,  with  Derry  v.  Peek,  14  App.  Cas. 
337. 

(e)  Chesterfield  v.  Janssen,  2  Ves.  Sen.  125;  Evans  v.  Bicknell,  6  Ves.  182; 
Hoare  v.  Brembridge,  L.  E.  8  Ch.  App.  22. 

(/)  4  Inst.  84. 

ig)  Stat.  16  Car.  I.  ch.  10. 

(h)  1  Mad.  Ch.  Pr.  89. 


80  EQUITY   JUKISPRUDENCB.  [CH.    VI. 

§  186.  It  is  not  easy  to  give  a  definition  of  fraud  in  the  extensive 
signification  in  which  that  term  is  used  in  courts  of  equity;  and  it 
has  been  said,  that  these  courts  have,  very  wisely,  never  laid  down, 
as  a  general  proposition,  what  shall  constitute  fraud  (f).  As  was  per- 
tinently observed  by  Lord  Hardwicke:  "  Fraud  is  infinite;  and  were 
a  court  of  equity  once  to  lay  down  rules,  how  far  they  would  go,  and  no 
farther,  in  extending  their  relief  against  it,  or  to  define  strictly  the 
species  or  evidence  of  it,  the  jurisdiction  would  be  cramped  and  per- 
petually eluded  by  new  schemes,  which  the  fertility  of  man's  invention 
would  contrive"  (k).  Fraud  is  even  more  odious  than  force;  and 
Cicero  has  well  remarked ;  "  Cum  autem  duobus  modis,  id  est,  aut  vi, 
aut  fraude,  fiat  injuria;  fraus,  quasi  vulpeculse,  vis,  leonis  videtur. 
Utrumque  homine  alienissimum ;  sed  fraus  odio  digna  majore  "  {V). 
Pothier  says  that  the  term  fraud  is  applied  to  every  artifice  made  use 
of  by  one  person  for  the  purpose  of  deceiving  another.  "  On  appelle 
Dol  toute  espece  d 'artifice,  dont  quelqu'un  se  sert  pour  tromper  un 
autre  "  (m).  Servius,  in  the  Roman  law,  defined  it  thus:  "  Dolum 
malum  machinationem  quandam  alterius  deeipiendi  causa,  cum  aliud 
simulatur,  et  aliud  agitur. "  To  this  definition  Labeo  justly  took  excep- 
tion, because  a  party  might  be  circumvented  by  a  thing  done  without 
simulation ;  and,  on  the  other  hand,  without  fraud,  one  thing  might 
be  done,  and  another  thing  be  pretended.  And  therefore  he  defined 
fraud  to  be  any  cunning,  deception,  or  artifice,  used  to  circumvextt, 
cheat,  or  deceive  another.  "  Dolum  malum  esse  omnem  calliditatem, 
fallaciam,  machinationem  ad  circumveniendum,  fallendum,  decipi- 
endum  alterum,  adhibitam."  And  this  is  pronounced  in  the  Digest 
to  be  the  true  definition.     "  Labeonis  Definitio  vera  est"  (n). 

§  187.  This  definition  is,  beyond  doubt,  sufficiently  descriptive  of 
what  may  be  called  positive,  actual  fraud,  where  there  is  an  intention 
to  commit  a  cheat  or  deceit  upon  another  to  his  injury.  But  it  can 
hardly  be  said  to  include  the  large  class  of  implied  or  constructive 
frauds,  which  are  within  the  remedial  jurisdiction  of  a  court  of  equity. 
Fraud,  indeed,  in  the  sense  of  a  court  of  equity,  properly  includes  all 
acts,  omissions,  and  concealments  which  involve  a  breach  of  legal  or 
equitable  duty,  trust,  or  confidence,  justly  reposed,  and  are  injurious 
to  another,  or  by  which  an  undue  and  unconscientious  adyantage  is 
taken  of  another.  And  courts  of  equity  will  not  only  interfere  in  cases 
of  fraud  to  set  aside  acts  done;  but  they  will  also,  if  acts  have  by 


(i)  Mortlock  v.  Bullet,  10  Ves.  306. 

(ft)  Letter  to  Lord  Kaims,  30  June,  1759,  quoted  Parke,  Hist,  of  Chanc.  508.     See 
also  Lawley  v.  Hooper,  3  Atk.  279. 
(0  Cic.  de  Offio.  Lib.  1,  oh.  13. 

(m)  1  Pothier  on  Oblig.  by  Evans,  Pt.  1,  ch.  1,  art.  3,  n.  28,  p.  19. 
(n)  Dig.  Lib.  i,  tit.  3,  f.  1,  §  2;  ibid.  Lib.  2,  tit.  14,  f.  7,  §  9. 


§  186 — 190.]  ACTUAL  FRAUD.  81 

fraud  been  prevented  from  being  done  by  the  parties,  interfere  and 
treat  the  case  exactly  as  if  the  acts  had  been  done  (o). 

§  188.  Lord  Hardwicke,  in  a  celebrated  case  (p),  after  remarking 
that  a  court  of  equity  has  an  undoubted  jurisdiction  to  relieve  against 
every  species  of  fraud,  proceeded  to  give  the  following  enumeration 
of  the  different  kinds  of  frauds.  First:  Fraud,  which  is  dolus  malus, 
may  be  actual,  arising  from  facts  and  circumstances  of  imposition, 
which  is  the  plainest  case.  Secondly :  It  may  be  apparent  from  the 
intrinsic  nature  and  subject  of  the  bargain  itself;  such  as  no  man  in 
his  senses,  and  not  under  delusion,  would  make  on  the  one  hand,  and 
as  no  honest  and  fair  man  would  accept  on  the  other;  which  are 
inequitable  and  unconscientious  bargains,  and  of  such  even  the 
common  law  has  taken  notice  (g).  Thirdly :  Fraud,  which  may  be 
presumed  from  the  circumstances  and  condition  of  the  parties  con- 
tracting; and  this  goes  farther  than  the  rule  of  law,  which  is,  that  it 
must  be  proved,  not  presumed.  But  it  is  wisely  established  in  the 
Court  of  Chancery,  to  prevent  taking  surreptitious  advantage  of  the 
weakness  or  necessity  of  another,  which  knowingly  to  do  is  equally 
against  conscience,  as  to  take  advantage  of  his  ignorance.  Fourthly : 
Fraud,  which  may  be  collected  and  inferred,  in  the  consideration  of  a 
court  of  equity,  from  the  nature  and  circumstances  of  the  transaction, 
as  being  an  imposition  and  deceit  on  other  persons,  not  parties  to  the 
fraudulent  agreement.  Fifthly :  Fraud,  in  what  are  called  catching 
bargains  with  heirs,  reversioners,  or  expectants,  in  the  life  of  the 
parents,  which  indeed  seems  to  fall  under  one  or  more  of  the  preceding 
heads. 

§  189.  Fraud,  then,  being  so  various  in  its  nature,  and  so  exten- 
sive in  its  application  to  human  concerns,  it  would  be  difficult  to 
enumerate  all  the  instances  in  which  courts  of  equity  will  grant  relief 
under  this  head.  It  will  be  sufficient,  if  we  here  collect  some  of  the 
more  marked  classes  of  cases,  in  which  the  principles  which  regulate 
the  action  of  courts  of  equity  are  fully  developed,  and  from  which 
analogies  may  be  drawn  to  guide  us  in  the  investigation  of  other  and 
novel  circumstances. 

§  190.  Before,  however,  proceeding  to  these  subjects,  it  may  be 
proper  to  observe,  that  courts  of  equity  do  not  restrict  themselves  by 
the  same  rigid  rules  as  courts  of  law  do,  in  the  investigation  of  fraud, 
and  in  the  evidence  and  proofs  required  to  establish  it.  It  is  equally 
a  rule  in  courts  of  law  and  courts  of  equity  that  fraud  is  not  to  be 
presumed;  but  it  must  be  established  by  proofs.  Circumstances  of 
mere  suspicion,  leading  to  no  certain  results,   will  not,   in  either  of 

(o)  Middleton  v.  Middleton,  1  Jac.  &  Walk.  96;  Lord  Waltham's  case,  cited  11 
Ves.  638,  14  Ves.  290. 

(p)  Chesterfield  v.  Janssen,  2  Ves.  Sen.  155. 
iq)  See  James  v.  Morgan,  1  Lev.  111. 
E.J.  6 


82  EQUITY   JURISPRUDENCE.  [CH.    VI. 

these  courts,  be  deemed  a  sufficient  ground  to  establish  fraud  (r).  On 
the  other  hand,  neither  of  these  courts  insists  upon  positive  and  express 
proofs  of  fraud ;  but  each  deduces  them  from  circumstances  justifying 
inferences  (s).  But  courts  of  equity  will  act  upon  circumstances,  as 
presumptions  of  fraud,  where  courts  of  law  would  not  deem  them 
satisfactory  proofs.  In  other  words,  courts  of  equity  will  grant  relief 
upon  the  ground  of  fraud,  established  by  presumptive  evidence,  which 
evidence  courts  of  law  would  not  always  deem  sufficient  proof  to  justify 
a  verdict  at  law.  It  is  in  this  sense  that  the  remark  of  Lord  Hardwicke 
is  to  be  understood,  when  he  said  that  ' '  fraud  may  be  presumed  from 
the  circumstances  and  condition  of  the  parties  contracting;  and  this 
goes  farther  than  the  rule  of  law,  which  is,  that  fraud  must  be  proved, 
not  presumed  "  (t).  And  Lord  Eldon  has  illustrated  the  same  pro- 
position by  remarking  that  a  court  of  equity  will,  as  it  ought,  in  many 
cases,  order  an  instrument  to  be  delivered  up,  as  unduly  obtained, 
which  a  jury  would  not  be  justified  in  impeaching  by  the  rules  of  law, 
which  require  fraud  to  be  proved,  and  are  not  satisfied,  though  it  may 
be  strongly  presumed  (u). 

§  191.  One  of  the  largest  classes  of  cases,  in  which  courts  of  equity 
are  accustomed  to  grant  relief,  is  where  there  has  been  a  misrepresen- 
tation, or  suggiestio  falsi  (x).  It  has  been  said,  indeed,  to  be  a  very 
old  head  of  equity,  that  if  a  representation  is  made  to  another  person, 
going  to  deal  in  a  matter  of  interest,  upon  the  faith  of  that  represen- 
tion,  the  former  shall  make  that  representation  good,  if  he  knows  it  to 
be  false  (y).  This  statement  is  correct  only  so  long  as  a  proper  meaning 
is  attached  to  the  word  "  representation,"  and  this  many  equity  prac- 
titioners still  refuse  to  do.  A  liability  can  be  established  upon  the 
footing  of  ' '  making  good  representations, ' '  in  cases  of  fraud,  breach  of 
duty,  contract  including  warranty,  or  estoppel.  Unless  one  or  other  of 
these  be  established  there  is  no  equitable  remedy  (a).  To  justify,  how. 
ever,  an  interposition  in  such  cases,  it  is  not  only  necessary  to  establish 
the  fact  of  misrepresentation;  but  that  it  is  in  a  matter  of  substance, 
or  important  to  the  interests  of  the  other  party,  and  that  it  actually 
does  mislead  him  (a).  For,  if  the  misrepresentation  was  of  a  trifling 
or  immaterial  thing;  or  if  the  other  party  did  riot  trust  to  it,  or  was 

(r)  Trenchard  v.  Wanley,  2  P.  Will.  166;  Townsend  v.  Lowfield,  1  Ves.  Sen.  35, 
3  Atk.  336 ;  Cavendish  Bentinck  v.  Fenn,  12  App.  Cas.  652 ;  Whitehorn,  Bros.  v. 
Damson,  [1911]  1  K.  B.  463. 

(s)  Buller,  J.,  Pasley  v.  Freeman,  3  T.  E.  60;  Parke,  B.,  Thorn  v.  Bigland,  8  Ex 
725 ;  Eomilly,  M.E.,  Ship  v.  CrosskiU,  L.  R.  10  Eq.  85. 

(t)  Chesterfield  v.  Janssen,  2  Ves.  Sen.  155,  156. 

(u)  Fullager  v.  Clark,  18  Ves.  483. 

(x)  Adam  v.  Newbigging,  13  App.  Cas.  308. 

{y)  Evans  v.  Bicknell,  6  Ves.  173,  182. 

(2)  Jorden  v.  Money,  5  H.  L.  C.  185 ;  Low  v.  Bouverie,  [1891]  3  Ch.  82 ;  Norton 
V.  Lord  Ashburton,  [1914]  A.  C.  932. 

(a)  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543;  Turner  v.  Harvey,  Jacob  178;  Attwood 
V.  Small,  6  CI.  &  F.  232. 


§  191 — 193.]  ACTUAL  FRAUD.  83 

not  misled  by  it ;  or  if  it  was  vague  and  inconclusive  in  its  own  nature ; 
or  if  it  was  upon  a  matter  of  opinion  or  fact,  equally  open  to  the 
inquiries  of  both  parties,  and  in  regard  to  which  neither  could  be  pre- 
sumed to  trust  the  other ;  in  these  and  the  like  cases  there  is  no  reason 
for  a  court  of  equity  to  interfere  to  grant  relief  upon  the  ground  of 
fraud  (6).  But  a  party  is  entitled  to  rely  upon  a  representation  made 
to  him,  and  it  is  no  answer  to  say  that  the  most  obvious  inquiry  would 
have  elicited  the  truth  (c). 

§  192.  Where  the  party  intentionally  or  by  design  misrepresents  a 
material  fact,  or  produces  a  false  impression,  in  order  to  mislead 
another,  or  to  entrap  or  cheat  him,  or  to  obtain  an  undue  advantage 
of  him,  in  every  such  case  there  is  a  positive  fraud  in  the  truest 
sense  of  the  terms  (d).  There  is  an  evil  act  with  an  evil  intent;  dolum 
■malum  ad  circumveniendnm.  And  the  misrepresentation  may  be 
as  well  by  deeds  or  acts,  as  by  words;  by  artifices  to  mislead,  as 
well  as  by  positive  assertions  (e).  The  civil  law  has  well  expressed  this, 
when  it  says:  "  Dolo  malo  pactum  fit,  quotiens,  circumscribendi 
alterius  causa,  aliud  agitur,  et  aliud  agi  simulatur  "  (/).  And  again: 
"  Dolum  malum  a  se  abesse  prsestare  venditor  debet,  qui  non  tantum 
in  eo  est,  qui  fallendi  causa  obscur^  loquitur,  sed  etiam,  qui  insidiosfe 
obscure  dissimulat  "  (g).  The  case  here  put  falls  directly  within  one  of 
the  species  of  frauds  enumerated  by  Lord  Hardwicke;  to  wit,  fraud 
arising  from  facts  and  circumstances  of  imposition  (h). 

§  193.  Whether  the  party  thus  misrepresenting  a  material  fact 
knew  it  to  be  false,  or  made  the  assertion  without  knowing  whether 
it  were  true  or  false,  is  wholly  immaterial ;  for  the  affirmation  of  what 
one  does  not  know  or  believe  to  be  true  is  equally,  in  morals  and  law, 
as  unjustifiable  as  the  affirmation  of  what  is  known  to  be  positively 
false  (j).  A  party  cannot  excuse  himself  by  stating  that  he  made  the 
statement  in  forgetfulness  of  the  true  facts,  common  honesty  requiring 
him  to  state,  "  I  do  not  recollect  whether  it  is  so  or  not  "  (fe).  It  was 
thought  by  some  that  this  principle  had  been  abrogated  by  a  subse- 
quent decision  in  Derry  v.  Peek  (I),  but  there  is  nothing  in  that  case  to 
warrant  this  view,  for  the  Judge  at  the  trial  found  as  a  fact  that  there 
had  been  no  fraud,  the  defendants'  offence  being  that  they  drew  a 

(6)  Trower  v.  Newcombe,  3  Meriv.  704;  Attwood  v.  Small,  6  CI.  &  F.  232. 

(c)  Redgrave  v.  Hurd,  20  Ch.  D.  1.     See  Wright  v.  Snowe,  3  De  G.  &  Sm.  321. 

id)  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543;  Attwood  v.  Small,  6  CI.  &  P.  232; 
Scott  V.  Dixon,  29  L.  J.  Ex.  62  n. ;  Pidcock  v.  Bishop,  3  B.  &  C.  605. 

(e)  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543;  Schneider  v.  Heath,  5  Camp.  506; 
Smith  V.  Bank  of  Scotland,  1  Dow.  272;  Pidcock  v.  Bishop,  3  B.  &  C.  605. 

(/)  Dig.  Lib.  2,  tit.  14,  f.  7,  §  9. 

(g)  Dig.  Lib.  18,  tit.  1,  f.  43,  §  2 ;  Pothier  de  Vente,  u.  234,  237,  288. 

(h)  Chesterfield  v.  Janssen,  2  Ves.  Sen.  155. 

(i)  Evans  v.  Edmonds,  18  C.  B.  777;  Reese  River  Silver  Mining  Co.  v.  Smith, 
L.  R.  4;  H.  L.  64. 

(k)  Pulsford  V.  Richards,  17  Beav.  94;  Bfownlie  v.  Campbell,  5  App.  Caa.  936. 

(Ij  Derry  v.  Peek,  14  App.  Cas.  380. 


84  EQUITY   JURISPRUDENCE.  [CH     VI. 

particular  conclusion  from  ascertained  facts,  and  were  in  truth  acting 
honestly.  The  decision,  however,  related  to  a  common  law  action  for 
damages  for  deceit,  and  is  only  in  part  applicable  to  the  equitable  right 
in  respect  of  innocent  misrepresentation  to  which  totally  different  con- 
siderations apply  (m).  It  does  not  appear,  therefore,  that  an  action 
may  not  be  maintained  for  equitable  relief  where  a  party  has  inno- 
cently misrepresented  a  material  fact  by  mistake  (n).  An  innocent 
party  may  be  made  liable  for  the  fraudulent  act  of  his  agent  so  long 
as  the  latter  acts  within  the  scope  of  his  authority  (o). 

§  194.  These  principles  are  so  consonant  to  the  dictates  of  natural 
justice,  that  it  requires  no  argument  to  support  or  enforce  them. 
The  principles  of  natural  justice  and  sound  morals  do,  indeed,  go 
farther;  and  require  the  most  scrupulous  good  faith,  candour,  and 
truth  in  all  dealings  whatsoever.  But  courts  of  justice  generally  find 
themselves  compelled  to  assign  limits  to  the  exercise  of  their  juris- 
diction, far  short  of  the  principles  deducible  ex  seqno  et  bono;  and, 
with  reference  to  the  concerns  of  human  life,  they  endeavour  to  aim 
at  mere  practical  good  and  general  convenience.  Hence  many  things 
may  be  reproved  in  sound  morals,  which  are  left  without  any  remedy, 
except  by  an  appeal  in  faro  conscientiie  to  the  party  himself  (p). 
Pothier  has  expounded  this  subject  with  his  usual  force  and  sterling 
sense.  "  As  a  matter  of  conscience  "  (says  he),  "  any  deviation  from 
the  most  exact  and  scrupulous  sincerity  is  repugnant  to  the  good  faith 
that  ought  to  prevail  in  contracts.  Any  dissimulation  concerning  the 
object  of  the  contract,  and  what  the  opposite  party  has  an  interest  in 
knowing,  is  contrary  to  that  good  faith ;  for  since  we  are  commanded 
to  love  our  neighbour  as  ourselves,  we  are  not  pei-mitted  to  conceal 
from  him  anything  which  we  should  be  unwilling  to  have  had  con- 
cealed from  ourselves  under  similar  circumstances.  But  in  civil 
tribunals  a  person  cannot  be  allowed  to  complain  of  trifling  deviations 
from  good  faith  in  the  party  with  whom  he  has  contracted.  Nothing 
but  what  is  plainly  injurious  to  good  faith  ought  to  be  there  con- 
sidered as  a  fraud,  sufficient  to  impeach  a  contract;  such  as  the  criminal 
manoeuvres  and  artifices  employed  by  one  party  to  induce  the  other 
to  enter  into  the  contract.  And  these  should  be  fully  substantiated  by 
proof.     Dolum  nan  nisi  perspicuis  indiciis  probari  convenit"   (q). 

§  195.  The  doctrine  of  law,   as  to   misrepresentation,   being  in  a 
practical  view  such  as  has  been  already  stated,  it  may  not  be  without 
use  to  illustrate  it  by  some  few  examples.    In  the  first  place,  the  mis- 
Cm)  Rawlins  v.  Wickham,  3  De  G.  &  J.  304 ;  Adam  v.  N&wbigging,  13  App.  Gas. 
308;  Nocton  v.  Lord  Ashburton,  [1914]  A.  C.  932. 

(n)  Pearson  v.  Morgan,  2  Bro.  C.  C.  389. 

(o)   Udell  v.  Atherton,  7  H.  &  N.  172;  Barwick  v.  English  Joint  Stock  Bank, 
Ij.  E.  2  Ex.  259;  Mullens  v.  Miller,  22  Ch.  D.  194;  Lloyd  v.  Grace  Smith  ^  Co 
[1912]  A.  C.  716. 

(p)  Pothier  de  Vente,  n.  234,  235,  289. 

(q)  Pothier  on  Oblig.  by  Evans,  p.  19,  n.  30;  Cod.  Lib.  2,  tit.  21,  f.  6. 


§    194—196.]  ACTUAL   FRAUD.  85 

representation  must  be  something  material,  constituting  an  inducement 
or  motive  to  the  act  or  omission  of  the  other  party,  and  by  which  he 
is  actually  misled  to  his  injury  (r).  Thus,  if  a  person  owning  an 
estate,  should  sell  it  to  another,  representing  that  the  annual  revenue 
from  the  sale  of  the  timber  amounted  to  £250,  and  this  constituted  an 
inducement  to  the  other  side  to  purchase,  and  the  representation  were 
utterly  false,  the  contract  for  the  sale,  and  the  sale  itself,  if  com- 
pleted, might  be  avoided  for  fraud;  for  the  representation  would  go 
to  the  essence  of  the  contract  (s).  But  if  he  should  represent  that  the 
estate  contained  twenty  acres  of  woodland  or  meadow,  and  the  actual 
quantity  was  only  nineteen  acres  and  three-quarters,  there,  if  the 
difference  in  quantity  would  have  made  no  difference  to  the  purchaser 
in  price,  value,  or  otherwise,  it  would  not,  on  account  of  its 
immateriality,  have  avoided  the  contract  (t).  So,  if  a  person  should 
sell  a  ship  to  another,  representing  her  to  be  five  years  old,  of  a 
certain  tonnage,  coppered  and  copper-fastened,  and  fully  equipped, 
and  found  with  new  sails  and  rigging;  any  of  these  representations, 
if  materially  untrue,  so  as  to  affect  the  essence  or  value  of  the  pur- 
chase, would  avoid  it.  But  a  trifling  difference  in  either  of  these 
ingredients,  in  no  way  impairing  the  fair  value  or  price,  or  not  material 
to  the  purchaser,  would  have  no  such  effect.  Thus,  for  instance,  if  the 
ship  was  a  half-ton  less  in  size,  was  a  week  more  than  five  years  old, 
was  not  copper-fastened  in  some  unimportant  place,  and  was  deficient 
in  some  trifling  rope,  or  had  some  sails  which  were  in  a  very  slight 
degree  worn;  these  differences  would  not  avoid  the  contract;  for  under 
such  circumstances,  the  difference  must  be  treated  as  wholly  incon- 
sequential (m).  The  rule  of  the  civil  law  would  here  apply :  Res  bond 
fide  vendita  propter  minimavi  cansam  inempta  fieri  non  debet. 

§  196.  So,  if  an  executor  of  a  will  should  obtain  a  release  from  a 
party  interested  in  the  estate,  upon  a  representation,  false  in  fact, 
that  he  had  no  interest  therein  (x) ;  or  if  a  compromise  should  be  effected 
between  two  brothers  upon  the  basis  that  the  elder  was  illegitimate, 
which  the  younger  knew  at  the  date  of  the  compromise  was  not  the 
fact  (y) ;  in  each  of  these  cases  the  transaction  would  be  set  aside  for 
fraud.  But  if,  in  point  of  fact,  in  the  first  case,  a  legacy,  though  given 
in  the  will,  had  been  revoked  by  a  codicil,  the  misrepresentation  would 
not  avoid  the  release,  because  it  is  immaterial  to  the  rights  of  either 
party. 

(r)  Pulsford  v.  Richards,  17  Beav.  94;  Smith  v.  Chadwick,  20  Ch.  D.  27;  Bellairs 
V.  Tucker,  13  Q.  B.  D.  562. 

(s)  Lowndes  v.  Lane,  2  Cox  363. 

(t)  McQueen  v.  Farquhar,  11  Ves.  467;  Leslie  v.  Tompson,  9  Ha.  268.  See  Peers 
V.  Lambert,  1  Beav.  546. 

(m)  See  1  Domat,  B.  1,  tit.  2,  §  11,  art.  12. 

{x)  Salkeld  v.  Vernon,  1  Eden  64. 

(y)  Gordon  v.  Gordon,  3  Swanat,'400. 


86  EQUITY   JURISPRUDENCE.  [CH.    VI. 

§  197.  It  was  the  opinion  of  the  author  that  the  misrepresentation 
must  not  only  be  in  something  material,  but  it  must  be  in  something 
in  regard  to  which  the  one  party  places  a  known  trust  and  confidence 
in  the  other  (a).  The  cases  cited  by  him  do  not  sustain  the  conclusion 
that  a  person  is  justified  in  making  a  false  statement  to  another  if  that 
other  knew  him  to  be  an  habitual  liar.  A  party  dealing  at  arm's 
length  with  another,  or  otherwise  not  bound  to  a  full  disclosure  of  the 
facts,  is  entitled  to  assume  that  the  other  party  will  rely  upon  his  own 
judgment;  and  matters  of  opinion,  where  the  parties  are  dealing  upon 
equal  terms,  if  falsely  stated,  are  generally  not  sufficient  to  entitle  the 
party  relying  upon  their  accuracy  in  fact  to  avoid  a  contract,  and  do 
not  afford  a  complete  answer  to  an  action  for  specific  performance  (a). 

§  199.  There  may  be  cases  in  which  the  very  extravagance  of  the 
statement  may  be  of  such  a  character  that  the  true  inference,  as 
matter  of  evidence,  is  that  the  party  was  not  in  fact  deceived,  or  else 
suffered  from  what  Wigram,  V.-C,  once  called  "  fraudulent  blind- 
ness "  (b).  To  this  extent  it  is  correct  to  say  that  a  wilful 
misrepresentation  may  be  of  such  a  nature  that  the  other  party  had  no 
right  to  place  reliance  on  it,  and  it  was  his  own  folly  to  give  credence 
to  it;  for  courts  of  equity,  like  courts  of  law,  do  not  aid  parties  who  will 
not  use  their  own  sense  and  discretion  upon  matters  of  this  sort  (c). 
But  the  general  principle  established  beyond  cavil  or  question  is  that 
it  is  no  defence  that  the  falsity  of  a  statement  was  discoverable  upon 
inquiry  made  in  quarters  from  which  information  could  be  obtained, 
and  the  party  deceived  has  negligently  abstained  from  inquiry  (d). 

§  201.  To  the  same  ground  of  unreasonable  indiscretion  and  con- 
fidence, may  be  referred  the  common  language  of  puffing  and  com- 
mendation of  commodities,  which,  however  reprehensible  in  morals 
as  gross  exaggerations  or  departures  from  truth,  are  nevertheless  not 
treated  as  frauds  which  will  avoid  contracts  (e).  In  such  cases  the 
other  party  is  bound,  and,  indeed,  is  understood,  to  exercise  his  own 
judgment,  if  the  matter  is  equally  open  to  the  observation,  examina- 
tion, and  skill  of  both.  To  such  cases  the  maxim  applies :  Simplex 
commendaiio  non  ohligat.     The  seller  represents  the  qualities  or  value 


(z)  See  Smith  v.  The  Bank  of  Scotland,  1  Dow  275;  Evans  v.  Bicknell,  6  Ves.  173, 
182  to  192. 

(a)  Cadman  v.  Horner,  18  Ves.  10;  Wall  v.  Stubbs,  1  Mad.  80;  Haygarth  v. 
W'earing,  L.  B.  12  Eq.  320;  In  re  Pacaza  Rubber  d  Produce  Co.,  Lim.,  Burns' 
Application,  [1914]  1  Ch.  542. 

(b)  Jones  v.  Smith,  1  Hare,  at  p.  61;  Clapham  v.  Shillito,  7  Beav.  146.  See  the 
principle  stated  and  applied  at  the  common  law,  Shrewsbury  v.  Blount,  2  Man.  &  G., 
at  p.  504;  Bell  v.  Gardiner,  4  Man.  &  G.,  at  p.  24. 

(c)  Fenton  v.  Browne,  14  Ves.  144;  Trower  v.  Newcome,  3  M«r.  704;  Kelly  v. 
Enderton,  [1913]  A.  C.  191. 

(d)  Central  Railway  of  Venezuela  v.  Kisch,  L.  B.  2  H.  L.  99;  Lindsay  Petroleum 
Co.  V.  Hurd,  L.  B.  5  P.  C.  221;  Redgrave  v.  Hurd,  20  Ch.  D.  1. 

ie)  Chandelo  v.  Lopus,  Cro.  Jac.  2;  Scott  v.  Hanson,  1  Sim.  13,  1  Buss.  &  M.  128; 
In  re  Hurlbatt  d  Chaytor's  Cont.,  57  L.  J.  Ch.  421. 


§  197 204.]  ACTUAL  FRAUD.  87 

of  the  commodity,  and  leaves  them  to  the  judgment  of  the  buyer.  The 
Eoman  law  adopted  the  same  doctrine.  "  Ea  quae  commendandi  causa 
in  venditionibus  dieuntur,  si  palam  appareant,  venditorem  non  obligant ; 
veluti,  si  dicat  servum  speeiosum,  domum'  bene  sBdifieatam "  (/). 
But,  if  the  means  of  knowledge  are  not  equally  open,  the  same  law 
pronounced  a  different  doctrine.  "  At,  si  dixerit,  hominem,  literatum, 
vel  artificem  prsestare  debet;  nam  hoc  ipso  puris  vendidit  "  (g).  The 
misrepresentation  enhances  the  price.  The  same  rule  will  apply  if 
any  artifice  is  used  to  disguise  the  character  or  quality  of  the  com- 
modity ;  or  to  mislead  the  buyer  at  the  sale ;  such  as  holding  out  false 
colours,  and  thereby  taking  the  buyer  by  surprise  (h). 

§  202.  In  the  next  place,  the  party  must  be  misled  by  the  mis- 
representation ;  for,  if  he  knows  it  to  be  false,  when  made,  it  cannot 
be  said  to  influence  his  conduct;  and  it  is  his  own  indiscretion,  and 
not  any  fraud  or  surprise,  of  which  he  has  any  just  complaint  to 
make  under  such  circumstances  («). 

§  203.  And  in  the  next  place,  the  party  must  have  been  misled  to 
his  prejudice  or  injury;  for  courts  of  equity  do  not,  any  more  than 
courts  of  law,  sit  for  the  purpose  of  enforcing  moral  obligations,  or 
correcting  unconscientious  acts,  which  are  followed  by  no  loss  or 
damage.  It  has  been  very  justly  remarked,  that,  to  support  an  action 
at  law  for  a  misrepresentation,  there  must  be  a  fraud  committed  by 
the  defendant,  and  a  damage  resulting  from  such  fraud  to  the  plaintiff. 
And  it  has  been  observed  with  equal  truth,  by  a  very  learned  judge, 
that  fraud  and  damage  coupled  together  will  entitle  the  injured 
party  to  relief  in  any  court  of  justice  (fc). 

§  204.  Another  class  of  cases  for  relief  in  equity  is,  where  there  is 
an  undue  concealment,  or  suppressio  veri,  to  the  injury  or  prejudice 
of  another.  It  is  not  every  concealment,  even  of  facts  material  to 
the  interest  of  a  party,  which  will  entitle  him  to  the  interposition  of 
a  court  of  equity.  The  case  must  amount  to  the  suppression  of  facts 
which  one  party,  under  the  circumstances,  is  bound  in  conscience 
and  duty  to  disclose  to  the  other  party,  and  in  respect  to  which  he 
cannot  innocently  be  silent  (Z).  It  has  been  said  by  Cicero,  "  Aliud 
est  celare,  aliud  tacere.  Neque  enim  id  est  celare,  quidquid  retieeas; 
sed  cum,  quod  tu  scias,  id  ignorare  emolumenti  tui  causa  veils  eos, 
quorum  intersit  id  scire  "  (m).     It  has  been  remarked  by  a  learned 

if)  Dig.  Lib.  18,  tit.  1,  f.  43. 

(3)  Ibid. 

(h)  Schneider  v.  Heath,  3  Camp.  506;  Robinson  v.  Wall,  2  Ph.  372;  Smith  v. 
Harrison,  26  L.  J.  Ch.  412. 

(i)  Jennings  v.  Broughton,  17  Beav.  234,  5  De  G.  M.  &  G.  120;  Nelson  v.  Stacker, 
4  De  G.  &  J.  458. 

(k)  Pasley  v.  Freeman,  3  T.  E.  51. 

(/)  Turner  v.  Harvey,  Jac.  169;  Railton  v.  Mathews,  10  CI.  &  F.  934. 

(to)  Cic.  de  Offic.  Lib.  3,  ch.  12,  13.  See  Knight  Bnjce,  V.-C,  Nelthorpe  v. 
Hdgate,  1  Coll.,  at  p.  221. 


88  EQUITY   JURISPRUDENCE.  [CH.    VI. 

author,  that  this  definition  of  concealment,  restrained  to  the  efficient 
motives  and  precise  subject  of  any  contract,  will  generally  hold  to 
make  it  void  in  favour  of  either  party,  who  is  misled  by  his  ignorance 
of  the  thing  concealed  (n).  And  Cicero  proceeds  to  denounce  such 
concealment  in  terms  of  vehement  indignation.  "  Hoc  autem  celandi 
genus  quale  sit,  at  cujus  hominis,  quis  non  videt  ?  Certfe  non  aperti, 
non  simplicis,  non  ingenui,  non  justi,  non  viri  boni;  versuti  potius, 
obscuri,  astuti,  fallacis,  malitiosi,  callidi,   veteratoris,  vafri  "  (o). 

§  205.  But  this  statement  is  not  borne  out  by  the  acknowledged 
doctrines,  either  of  courts  of  law  or  of  equity,  in  a  great  variety  of 
cases.  However  correct  Cicero's  view  may  be  of  the  duty  of  every 
man,  in  point  of  morals,  to  disclose  all  facts  to  another  with  whom 
he  is  dealing  which  are  material  to  his  interest,  yet  it  is  by  no  means 
true  that  courts  of  justice  generally,  or,  at  least,  in  England,  under- 
take the  exercise  of  such  a  wide  and  difficult  jurisdiction.  Thus  it 
has  been  held  by  Lord  Thurlow  (and  the  case  falls  precisely  within 
the  definition  by  Cicero  of  undue  concealment)  that  if  A.,  knowing 
there  is  a  mine  in  the  land  of  B.,  of  which  he  knows  B.  to  be 
ignorant,  should,  concealing  the  fact,  enter  into  a  contract  to  purchase 
the  estate  of  B.  for  a  price  which  the  estate  would  be  worth  without 
considering  the  mine,  the  contract  would  be  good,  because  A.,  as  the 
buyer,  is  not  obliged,  from  the  nature  of  ttie  contract,  to  make  the 
discovery.  In  such  cases  the  question  is  not  whether  an  advantage 
has  been  taken,  which  in  point  of  morals  is  wrong,  or  which  a  man  of 
delicacy  would  not  have  taken.  But  it  is  essentially  necessary,  in 
order  to  set  aside  the  transaction,  not  only  that  a  great  advantage 
should  be  taken,  but  also  that  there  should  be  some  obligation  on 
the  party  to  make  the  discovery.  A  court  of  equity  will  not  correct 
or  avoid  a  contract  merely  because  a  man  of  nice  honour  would  not 
have  entered  into  it.  The  case  must  fall  within  some  definition  of 
fraud,  and  the  rule  must  be  drawn  so  as  not  to  affect  the  general 
transactions  of  mankind  (p).  And  this,  in  effect,  is  the  conclusion  to 
which  Pothier  arrived,  after  a  good  deal  of  struggle,  in  adjusting  the 
duties  arising  from  moral  obligation  with  the  necessary  freedom  and 
convenience  of  the  common  business  of  human  life  (q). 

§  206.  Mr.  Chancellor  Kent,  in  his  learned  commentaries,  after 
admitting  the  doctrine  and  authority  of  Lord  Thurlow  in  the  case 
above  stated,  concludes  with  the  following  acute  and  practical  reflec- 
tions: "  From  this  and  other  cases  it  would  appear  that  human  laws 
are  not  so  perfect  as  the  dictates  of  conscience,  and  the  sphere  of 
morality  is  more  enlarged  than  the  limits  of  civil  jurisdiction.  There 
are   many   duties   that   belong   to   the  class   of   imperfect  obligations 

(n)  Marshall  on  Insur.  B.  1,  ch.  11,  §  3,  p.  473. 

(o)  Cic.  de  Offic.  Lib.  3,  cap.  13. 

{p)  Fox  V.  Mackreth,  2  Bro.  C.  C.  420;  Turner  v.  Harvey,  Jac.  169. 

(g)  Pothier  de  Vente,  n.  234,  242. 


§  205 — 207.]  ACTUAL  FRAUD.  89 

which  are  binding  on  conscience,  but  which  human  laws  do  not  and 
cannot  undertake  directly  to  enforce.  But  when  the  aid  of  a  court 
of  equity  is  sought  to  carry  into  execution  such  a  contract,  then  the 
principles'  of  ethics  have  a  more  extensive  sway.  And  a  purchase 
made  with  such  a  reservation  of  superior  knowledge  would  be  of  too 
sharp  a  character  to  be  aided  and  forwarded  in  its  execution  by  the 
powers  of  the  Court,  of  Chancery.  It  is  a  rule  in  equity  that  all  the 
material  facts  must  be  known  to  both  parties  to  render  the  agreement 
fair  and  just  in  all  its  parts;  and  it  is  against  all  the  principles  of 
equity  that  one  party,  knowing  a  material  ingredient  in  an  agree- 
ment, should  be  permitted  to  suppress  it,  and  still  call  for  a  specific 
performance  (r).  The  importance  and  value  of  the  distinction  here 
pointed  out  will  be  made  more  apparent  when  we  come  to  the  con- 
sideration of  the  cases  in  which  courts  of  equity  refuse  to  decree  a 
specific  performance  of  contracts  which  yet  they  will  not  undertake 
to  set  aside  (s). 

§  207.  The  true  definition,  then,  of  undue  concealment,  which 
amounts  to  a  fraud  in  the  sense  of  a  court  of  equity,  and  for  which  it 
will  grant  relief,  is  the  non-disclosure  of  those  facts  and  circum- 
stances which  one  party  is  under  some  legal  or  equitable  obligation 
to  communicate  to  the  other,  and  which  the  latter  has  a  right  not 
merely  in  foro  conscientise  but  juris  et  de  jure  to  know  (t).  Mr.  Chan- 
cellor Kent  has  avowed  a  broader  doctrine.  "As  a  general  rule  " 
(says  he),  "  each  party  is  bound  in  every  case  to  communicate  to  the 
other  his  knowledge  of  material  facts,  provided  he  knows  the  other 
to  be  ignorant  of  them,  and  they  be  not  open  and  naked,  or  equally 
within  reach  of  his  observation"  («).  This  doctrine,  in  this  latitude 
of  expression,  may,  perhaps,  be  thought  not  strictly  maintainable, 
or  in  conformity  with  that  which  is  promulgated  by  courts  of  law 
or  equity.  For  many  most  material  facts  may  be  unknown  to  one 
party  and  known  to  the  other,  and  not  equally  accessible,  or  at  the 
moment  within  the  reach  of  both ;  and  yet  contracts  founded  upon  such 
ignorance  on  one  side  and  knowledge  on  the  other  may  be  com- 
pletely obligatory.  Thus,  if  one  party  has  actual  knowledge  of  an 
event  or  fact  from  private  sources  not  then  known  to  the  ether 
party  from  whom  he  purchases  goods,  and  which  knowledge  would 
materially  enhance  the  price  of  the  goods  or  change  the  intention  of 
the  party  as  to  the  sale,  the  contract  of' sale  of  the  goods  will,  never- 
theless, be  valid  {x}. 

(r)  2  Kent.  Comm.  Lect.  39,  pp.  490,  491  (4th  edit.  3) ;  Ellard  v.  Lord  Llandajf, 
1  Ball  &  Beat.  250,  251. 

is)  See  §§  693,  769,  770,  infra. 

(t)  Fox  V.  Mackreth,  2  Bro.  C.  C.  420 ;  Railton  v.  Mathews,  10  CI.  &  P.  934 ; 
Hamilton  v.  Watson,  12  CI.  &  P.  109. 

(u)  2  Kent,  Comm.  Lect.  p.  482  (4th  edit.),  and  note,  ibid.,  where  it  ia  now 
qualified. 

(x)  The  case  of  the  unknown  mine,  already  put  in  the  case  of  Fox  v.  Mackreth, 


90  EQUITY   JURISPRUDENCE.  [CH.    VI. 

§  208.  Even  Pothier  himself,  strongly  as  he  inclines,  in  all  cases  of 
this  sort,  to  the  principles  of  sound  morals,  declares,  that  the  buyer 
cannot  be  heard  to  complain  that  the  seller  has  not  informed  him  of 
circumstances  extrinsic  of  the  thing  sold,  whatever  may  be  the  interest 
which  he  has  to  know  them  (y).  So  that  the  doctrine  of  Mr.  Chancellor 
Kent  requires  to  be  qualified,  by  limiting  it  to  cases  where  one  party 
is  under  some  obligation  to  communicate  the  facts,  or  where  there 
is  a  peculiar  known  relation,  trust,  or  confidence  between  them,  which 
authorizes  the  other  party  to  act  upon  the  presumption  that  there 
is  no  concealment  of  any  material  fact.  Thus,  if  a  vendor  should  sell 
an  estate,  knowing  that  he  had  no  title  to  it,  or  knowing  that  there 
were  incumbrances  on  it,  of  which  the  vendee  was  ignorant;  the  sup- 
pression of  these  or  any  other  material  facts,  in  respect  to  which  the 
vendor  must  know  that  the  very  purchase  implied  a  trust  and  con- 
fidence on  the  part  of  the  vendee,  that  no  such  defect  existed,  would 
clearly  avoid  the  sale  on  the  ground  of  fraud  (z). 

§  209.  The  like  reason  would  apply  to  a  case  where  the  vendor 
should  sell  a  house,  situate  in  a  distant  town,  which  he  knew  at  the 
time  to  be  burnt  down,  and  of  which  fact  the  vendee  was  ignorant; 
for  it  is  impossible  to  suppose,  that  the  actual  existence  of  the  house 
should  not  be  understood  by  the  vendee,  as  implied  on  the  part  of  the 
vendor  at  the  time  of  the  bargain  (a).  The  same  doctrine  prevails 
in  the  civil  law.  "  Sin  autem  venditor  quidem  sciebat  domum  esse 
exustam,  emptor  autem  ignorabat,  nullam  venditionem  stare  "  (b). 

§  210.  These  latter  cases  are  founded  upon  circumstances  intrinsic 
in  the  contract,  and  constituting  its  essence.  And  there  is  often  a 
material  distinction  between  circumstances  which  are  intrinsic,  and 
form  the  very  ingredients  of  the  contract,  and  circumstances  which 
are  extrinsic,  and  form  no  part  of  it,  although  they  may  create  induce- 
ments to  enter  into  it,  or  affect  the  value  or  price  of  the  thing  sold. 
Intrinsic  circumstances  are  properly  those  which  belong  to  the  nature, 
character,  condition,  title,  safety,  use,  or  enjoyment  of  the  subject- 
matter  of  the  contract;  such  as  natural  or  artificial  defects  in  the 
subject-matter.  Extrinsic  circumstances  are  properly  those  which 
are  accidentally  connected  with  it,  or  rather  bear  upon  it,  at  the  time 
of  the  contract,  and  may  enhance  or  diminish  its  value  or  price,  or 
operate  as  a  motive  to  make  or  decline  the  contract;  such  as  facts 
respecting  the  occurrence  of  peace  or  war,  the  rise  or  fall  of  markets, 

2  Bro.  C.  C.  420,  seems  to  fall  within  this  predicament;  Nelthorpe  v.  Holgate,  7  Coll. 
203.     See  also  §§  147,  148,  and  149. 

iy)  Pothier,  Vente,  n.  242,  298,  299. 

(z)  Davies  v.  Cooper,  5  M.  &  Cr.  270;  Smith  v.  Harrison,  26  L.  J.  Ch.  412; 
Torrance  v.  Bolton,  L.  E.  8  Ch.  118. 

(o)  See  Pothier,  Vente,  n.  4;  ante,  §  142. 

(6)  Dig.  Lib.  tit.  1,  t.  57,  §  1 ;  ante,  §  142. 


§  208 — 213.]  ACTUAL  FRAUD.  91 

the  character  of  the  neighbourhood,  the  increase  or  diminution  of 
duties,  or  the  like  circumstances  (c). 

§  211.  In  regard  to  extrinsic,  as  well  as  to  intrinsic  circumstances, 
the  Eoman  law  seems  to  have  adopted  a  very  liberal  doctrine,  carry- 
ing out  to  a  considerable  extent  the  clear  dictates  of  sound  morals. 
It  required  the  utmost  good  faith  in  all  cases  of  contracts,  involving 
mutual  interests :  and  it,  therefore,  not  only  prohibited  the  assertion 
of  any  falsehood,  but  also  the  suppression  of  any  facts,  touching  the 
subject-matter  of  the  contract,  of  which  the  other  party  was  ignorant, 
and  which  he  had  an  interest  in  knowing.  In  an  especial  manner  it 
applied  this  doctrine  to  cases  of  sales;  and  required  that  the  vendor 
and  vendee  should  disclose,  each  to  the  other,  every  circumstance 
within  his  knowledge  touching  the  thing  sold,  which  either  had  an 
interest  in  knowing.  The  declaration  in  regard  to  the  vendor  (as  we 
have  seen)  is :  "  Dolum  malum  a  se  abesse  praestare  venditor  debet ; 
qui  non  tantum  in  eo  est,  qui  fallendi  causa  obscure,  loquitur;  sed 
etiam,  qui  insidios^,  obscur^  dissimulat ' ' ;  and  the  same  rule  was 
applied  to  the  vendee  (d).  According  to  these  principles,  the  vendor 
was  by  the  Eoman  law  required,  not  only  not  to  conceal  any  defects 
of  the  thing  sold,  which  were  within  his  knowledge,  and  of  which  the 
other  party  was  ignorant,  whenever  those  defects  might,  as  vices,  upon 
the  implied  warranty  created  by  the  sale,  entitle  him  to  a  redhibition 
or  a  rescission  of  the  contract;  but  also  all  other  defects,  which  the 
other  party  was  interested  in  knowing  (e). 

§  212.  In  regard  to  intrinsic  circumstances,  the  common  law,  how- 
ever, has  in  many  cases  adopted  a  rule  very  different  from  that  of  the 
civil  law;  and  especially  in  cases  of  sales  of  goods.  In  such  cases, 
the  maxim  caveat  emptor  is  applied ;  and  unless  there  be  some  mis- 
representation or  artifice,  to  disguise  the  thing  sold,  or  some  warranty, 
as  to  its  character  or  quality,  the  vendee  is  understood  to  be  bound  by 
the  sale,  notwithstanding  there  may  be  intrinsic  defects  and  vices  in 
it,  known  to  the  vendor,  and  unknown  to  the  vendee,  materially 
affecting  its  value.  However  questionable  such  a  doctrine  may  be,  in 
its  origin,  in  point  of  morals  or  general  convenience  (upon  which  many 
learned  doubts  have,  at  various  times,  been  expressed),  it  is  too  firmly 
established  to  be  now  open  to  legal  controversy  (/).  And  courts  of 
equity,  as  well  as  courts  of  law,  abstain  from  any  interference  with 
it. 

§  213.  In  regard  to  intrinsic  circumstances  generally,  courts  of 
equity,  as  well  as  courts  of  law,  seem  to  adopt  the  same  maxim  to 


(c)  Kenney  v.  Wexham,  6  Mad.  355;  Scott  v.  Goulson,  [1903]  2  Ch.  249.  Pothier, 
Vente,  u.  236. 

(rf)  Dig.  Lib.  18,  tit.  1,  f.  43,  §  2;  Pothier,  Vente,  n.  233  to  241;  ibid.  n.  226; 
ante,  §  192;  Pothier,  Vente,  cited  in  note  c,  p.  185. 

(e)  Pothier,  Vente,  n.  235. 

(/)  Chandelor  v.  Lopus,  Cro.  Jac.  2;  Ward  v.  Hobbs,  4  App.  Cas.  13. 


92  EQUITY   JURISPRUDENCE.  [CH.    VI. 

a  large  extent,  and  relax  its  application,  only  when  there  are  circum- 
stances of  peculiar  trust,  or  confidence,  or  relation  between  the 
parties. 

§  214.  But  there  are  cases  of  intrinsic  circumstances,  in  which 
courts  of  law  and  courts  of  equity  both  proceed  upon  a  doctrine 
strictly  analogous  to  that  of  the  Eoman  law,  and  treat  the  conceal- 
ment of  them  as  a  breach  of  trust  and  confidence  justly  reposed. 
Indeed,  in  most  cases  of  this  sort,  the  very  silence  of  the  party  must 
import  as  much  as  a  direct  affirmation,  and  be  deemed  equivalent 
to  it  (g). 

§  215.  Thus,  if  a  party  taking  a  guarantee  from  a  surety,  conceals 
from  him  facts  which  go  to  vary  the  risk  assumed  in  a  material 
particular,  or  suffers  him  to  enter  into  the  contract  under  false 
impressions,  as  to  the  real  state  of  the  facts,  such  a  concealment 
will  amount  to  a  fraud;  because  the  party  is  bound  to  make  the 
disclosure,  and  the  omission  to  make  it,  under  such  circumstances,  is 
equivalent  to  an  affirmation  that  the  facts  do  not  exist  (h).  So,  if  a 
party  knowing  himself  to  be  cheated  by  his  clerk,  and,  concealing  the 
fact,  applies  for  security  in  such  a  manner  and  under  such  circum- 
stances, as  would  naturally  lead  to  the  inference  that  he  considers 
the  clerk  to  be  a  trustworthy  person ;  and  another  person  becomes  his 
security,  acting  under  the  impression  that  the  clerk  is  so  considered 
by  his  employer ;  the  contract  of  suretyship  will  be  void  ()) ;  for  the 
very  silence,  under  such  circumstances,  becomes  expressive  of  a  trust 
and  confidence  held  out  to  the  public,  equivalent  to  an  affirmation. 

§  216.  Cases  of  insurance  afford  another  illustration  of  the  same 
doctrine.  In  such  cases  the  insurer  necessarily  reposes  a  trust  and 
confidence  that  the  assured  will  disclose  all  facts  and  circumstances 
materially  affecting  the  risk,  which  are  peculiarly  within  his  know- 
ledge, and  which  are  not  of  a  public  and  general  nature,  or  which  the 
underwriter  does  not  know,  or  is  not  bound  to  know.  Indeed,  most 
of  the  facts  and  circumstances  which  may  aSect  the  risk,  are  generally 
within  the  knowledge  of  the  assured  only ;  and  therefore,  the  under- 
writer may  be  said  emphatically  to  place  trust  and  confidence  in 
him  as  to  all  such  matters.  And  hence,  the  general  principle  is,  that 
in  all  cases  of  insurance  the  assured  is  bound  to  communicate  to 
the  insurer  all  facts  and  circumstances  material  to  the  risk,  within  his 

((/)  See  Martin  v.  Morgan,  1  Brod.  &  Bing.  289 ;  Owen  v.  Homan,  i  H.  L.  C.  997  ; 
Davies  v.  London  and  Provincial  Marine  Ins.  Co.  8  Cb.  D.  469. 

{h)  Pidcock  V.  Bishop,  3  B.  &  C.  605;  Stone  v.  Compton,  5  Bing.  N.  C.  142; 
Railton  v.  Matheios,  10  CI.  &  P.  935;  Hamilton  v.  Watson,  12  CI.  &  F.  119;  North 
British  Ins.  Co.  v.  Lloyd,  10  Ex.  523;  Kingston-upon-Hull  Corporation  v.  Harding, 
,[1892]  2  Q.  B.  494 

(i)  Lee  v.  Jones,  17  C.  B.  (n.s.)  482;  Phillips  v.  Foxhall,  L.  E.  7  Q.  B.  666; 
London  Gen.  Omnibus  Co.  v.  Holloway,  [1912]  2  K.  B.  72;  Nat.  Prov.  Bank  of 
England  v.  Baron  Glanusk,  [1913]  3  K.  B.  335. 


§  214 — 219.]  ACTUAL  FRAUD.  93 

knowledge;  and  if  they  are  withheld,  whether  the  concealment  be  by- 
design  or  by  accident,  it  is  equally  fatal  to  the  contract  (fc). 

§  217.  The  same  principle,  applies  in  all  cases  where  the  party 
is  under  an  obligation  to  make  a  disclosure,  and  conceals  material 
facts.  Therefore,  if  a  release  is  obtained  from  a  party  in  ignorance; 
of  material  facts,  which  it  is  the  duty  of  the  other  side  to  disclose, 
the  release  will  be  held  to  be  invalid  (I).  So,  in  cases  of  family 
agreements,  and  compromises,  if  there  is  any  concealment  of  material 
facts,  the  compromise  will  be  held  invalid,  upon  the  ground  of  mutual 
trust  and  confidence  reposed  between  the  parties  (m).  And,  in  like- 
manner,  if  a  devisee,  by  concealing  from  the  heir  the  fact  that  the  will 
has  not  been  duly  executed,  procures  from  the  latter  a  release  of  his; 
title,  pretending  that  it  will  facilitate  the  raising  of  money  to  pay  the 
testator's  debts,  the  release  will  be  void  on  account  of  the  fraudulent 
concealment  (n). 

§  218.  But  by  far  the  most  comprehensive  class  of  cases  of  undue- 
concealment  arises  from  some  peculiar  relation,  or  fiduciary  character 
between  the  parties.  Among  this  class  of  cases  are  to  be  found  those 
which  arise  from  the  relation  of  client  and  solicitor,  principal  and 
agent,  principal  and  surety,  parent  and  child,  guardian  and  ward, 
ancestor  and  heir,  trustee  and  cestui  que  trust,  executors  or  adminis- 
trators and  creditors,  legatees  or  other  beneficiaries,  appointer  and 
appointee  under  powers,  and  partner  and  part-owners.  In  these,  and 
the  like  eases,  the  law,  in  order  to  prevent  undue  advantage,  from  the- 
unlimited  confidence,  affection,  or  sense  of  duty,  which  the  relation 
naturally  creates,  requires  the  utmost  degree  of  good  faith  (uberrima: 
fides)  in  all  transactions  between  the  parties.  If  there  is  any  misrepre- 
sentation, or  any  concealment  of  a  material  fact,  or  any  just 
suspicion  of  artifice  or  undue  influence,  courts  of  equity  will  interpose, 
and  pronounce  the  transaction  void,  and,  as  far  as  possible,  restore  the 
parties  to  their  original  rights. 

§  219.  This  subject  will  naturally  come  in  review  in  a  subsequent 
page,  when  we  come  to  consider  what  may  be  deemed  the  peculiar- 
equities  between  parties  in  these  predicaments,  and  the  guards  which 
are  interposed  by  the  law  by  way  of  prohibition  upon  their  trans- 
actions (o).  It  may  suffice  here,  merely  by  way  of  illustration,  to- 
suggest  a  few  applications  of  the  doctrine.  Thus,  for  instance,  if 
a  solicitor,  employed  by  the  party,  should  designedly  conceal  from 
his  client  a  material  fact  or  principle  of  law,   by   which  he   shouldi 

(k)  Marine  Insurance  Act,  1906,  s.  18;  Sibbald  v.  Hill,  2  Dow.  263;  Rivaz  v., 
Gerussi,  6  Q.  B.  D.  222;  The  Bedouin,  [1894]  P.  1;  Cantiere  Meccanico  Brindisino  v. 
Jansen,  [1912]  3  K.  B.  452. 

(I)  Lloyd  V.  Attwood,  8  De  G.  &  J.  614;  Farrant  v.  Blanchford,  1  De  G.  J.  &  S- 
107. 

(m)  Gordon  v.  Gordon,  3  Swanst.  399. 

(n)  Broderick  v.  Broderick,  1  P.  Will.  239,  249. 

(o)  Post,  §§  308  to  328. 


94  EQUITY   JURISPRUDENCE.  [CH     VI. 

gain  an  interest  not  intended  by  the  client,  it  will  be  held  a  positive 
fraud,  and  he  will  be  treated  as  a  mere  trustee  for  the  benefit  of 
his  client  and  his  representatives.  And,  in  a  case  of  this  sort,  it  will 
not  be  permitted  to  the  solicitor  to  set  up  his  ignorance  of  law,  or 
his  negligence,  as  a  defence  or  an  excuse.  It  has  been  justly 
remarked,  that  it  would  be  too  dangerous  to  the  interests  of  mankind, 
to  allow  those  who  are  bound  to  advise,  and  who  ought  to  be  able  to 
give  good  and  sound  advice,  to  take  advantage  of  their  own  professional 
ignorance  to  the  prejudice  of  others  (p).  Solicitors  must,  from  the 
nature  of  the  relation,  be  held  bound  to  give  all  the  information  which 
they  ought  to  give,  and  not  be  permitted  to  plead  ignorance  of  that 
which  they  ought  to  know. 

§  220.  In  like  manner,  a  trustee  cannot,  by  the  suppression  of  a 
fact,  entitle  himself  to  a  benefit,  to  the  prejudice  of  his  cestui  que 
trust.  Thus,  formerly,  a  creditor  of  the  husband  concealing  the  fact  could 
not,  by  procuring  himself,  by  such  concealment,  to  be  appointed  the 
trustee  of  the  wife,  entitle  himself  to  deduct  his  debt  from  the  trust  fund 
against  the  wife  or  her  representatives,  or  even  against  the  person  in 
whose  favour,  and  at  whose  instance,  he  had  made  the  suppression  (g). 
So,  if  a  partner,  who  exclusively  superintends  the  business  and 
accounts  of  the  concern,  should,  by  concealment  of  the  true  state  of 
accounts  and  business,  purchase  the  share  of  the  other  partner  for  an 
inadequate  price,  by  means  of  such  concealment,  the  purchase  will  be 
held  void  (?•). 

§  221.  Having  taken  this  general  notice  of  cases  of  fraud,  arising 
from  the  misrepresentation  or  concealment  of  material  facts,  we  may 
now  pass  to  the  consideration  of  some  others,  which,  in  a  moral  as 
well  as  in  a  legal  view,  seem  to  fall  under  the  same  predicament,  that 
of  being  deemed  cases  of  actual,  intentional  fraud,  as  contradistin- 
guished from  constructive  or  legal  fraud.  In  this  class  may  properly 
be  included  all  cases  of  unconscientious  advantages  in  bargains, 
obtained  by  imposition,  circumventions,  surprise,  and  undue  influence, 
over  persons  in  general ;  and  in  an  especial  manner,  all  unconscientious 
advantages,  or  bargains  obtained  over  persons  disabled  by  weakness, 
infirmity,  age,  lunacy,  idiocy,  drunkenness,  or  other  incapacity,  from 
taking  due  care  of,  or  protecting  their  own  rights  and  interests. 

§  222.  The  general  theory  of  the  law,  in  regard  to  acts  done  and 
contracts  made  by  parties,  affecting  their  rights  and  interests,  is,  that 
in  all  such  cases  there  must  be  a  free  and  full  consent  to  bind  the 
parties.  Consent  is  an  act  of  reason,  accompanied  with  deliberation, 
the  mind  weighing,  as  in  a  balance,  the  good  and  evil  on  each  side. 
And,  therefore,   it  has  been  well  remarked  by  an  able  commentator 

(p)  Bulkley  v.  Wilford,  2  CI.  &  F.  102;  post,  §  311 
iq)  Dalbiac  v.  Dalbiac,  16  Ves.  115;  post,  §  321. 

(r)  Maddeford  v.  Austwick,  1  Sim.  89;  2  M.  &  K.  279;  Helmore  v.  Smith,  35 
Ch.  D.  436. 


§    220—230.]  ACTUAL   FRAUD.  95 

upon  the  law  of  nature  and  nations,  that  every  true  consent  supposes 
three  things:  first,  a  physical  power;  secondly,  a  moral  power;  and, 
thirdly,  a  serious  and  free  use  of  them.  And  Grotius  has  added,  that 
what  is  not  done  with  a  deliberate  mind  does  not  come  under  the 
class  of  perfect  obligations  (s).  And  hence  it  is  that,  if  consent  is 
obtained  by  meditated  imposition,  circumvention,  surprise,  or  undue 
influence,  it  is  to  be  treated  as  a  delusion,  and  not  as  a  deliberate 
and  free  act  of  the  mind.  For,  although  the  law  will  not  generally 
examine  into  the  wisdom  or  prudence  of  men  in  disposing  of  their 
property,  or  in  binding  themselves  by  contracts  or  by  other  acts,  yet 
it  virill  not  suffer  them  to  be  entrapped  by  the  fraudulent  contrivances, 
or  cunning,  or  deceitful  management  of  those  who  purposely  mislead 
them. 

§  223.  It  is  upon  this  general  ground,  that  there  is  a  want  of 
rational  and  deliberate  consent,  that  the  contracts  and  other  acts  of 
idiots,  lunatics,  and  other  persons,  non  compotes  mentis,  are  generally 
deemed  to  be  voidable  in  courts  of  equity.  But  it  is  difficult  to  appre- 
ciate the  mental  attitude  of  the  learned  author  who  collected  in  this 
and  subsequent  paragraphs,  cases  dealing  with  the  capacity  of  a  party 
to  contract  under  a  category  of  actual  fraud.  An  advantage  taken  by 
a  person  who  knows  that  the  other  contracting  party  is  insane,  is  a 
fraud,  but  nothing  short  of  this  will  invalidate  the  contract  (<),  unless 
the  party  has  been  found  to  be  a  lunatic  by  inquisition  (u). 

§  230.  Lord  Coke  has  enumerated  four  different  classes  of  persons 
who  are  deemed  in  law  to  be  non  compotes  mentis.  The  first  is  an 
idiot,  or  fool  natural;  the  second  is  he  who  was  of  good  and  sound 
memory,  and  by  the  visitation  of  God  has  lost  it;  the  third  is  a  lunatic, 
lunaticus  qui  ffaudet  lucidis  intervallis,  and  sometimes  is  of  a  good 
and  sound  memory,  and  sometimes  non  compos  mentis ;  and  the  fourth 
is  a  non  com,pos  m,entis  by  his  own  act,  as  a  drunkard  (x).  In  respect 
to  the  last  class  of  persons,  although  it  is  regularly  true  that  drunken- 
ness doth  not  extenuate  any  act  or  offence  committed  by  any  person 
against  the  laws ;  but  it  rather  aggravates  it,  and  he  shall  gain  no 
privilege  thereby;  and,  although  in  strictness  of  law,  the  drunkard 
has  less  ground  to  avoid  his  own  acts  and  contracts  than  any  other 
non  compos  mentis;  yet  courts  of  equity  will  relieve  against  acts 
done,  and  contracts  made,  by  him  while  under  this  temporary  insanity, 
where  they  are  procured  by  the  fraud  or  imposition  of  the  other 
party.  For,  whatever  may  be  the  demerit  of  the  drunkard  himself, 
the  other  party  has  not  the  slightest  ground  to  claim  the  protection 


(s)  Grotius  de  Jure  Belli  et  Pacis,  Lib.  2,  ch,  11,  §  4. 

(t)  Campbell  v.  Hooper,  3  Sm.  &  G-.  153;  Imperial  Loan  Co.  v.  Stone,  [1892] 
1  Q.  B.  599;  Sale  of  Goods  Act,  1894,  s.  2.  See  In  re  Rhodes;  Rhodes  v.  Rhodes, 
44  Ch.  D.  94 

(u)  In  re  Walker,  [1905]  1  Ch.  160. 

(x)  Beverley's  Case,  4  Co.  124. 


96  EQUITY   JURISPRUDENCE.  [CH.    VI. 

of  courts  of  equity  against  his  own  grossly  immoral  and  fraudulent 
conduct  [y). 

§  231.  But  to  set  aside  any  act  or  contract  on  account  of  drunken- 
ness, it  is  not  sufficient  that  the  party  is  under  undue  excitement 
from  liquor.  It  must  rise  to  that  degree  which  may  be  called  exces- 
sive drunkenness,  where  the  party  is  utterly  deprived  of  the  use  of 
his  reason  and  understanding;  for  in  such  a  case  there  can  in  no 
just  sense  be  said  to  be  a  serious  and  deliberate  consent  on  his  part; 
and  without  this,  no  contract  or  other  act  "Can  or  ought  to  be  binding 
by  the  law  of  nature  (a).  If  there  be  not  that  degree  of  excessive 
drunkenness,  then  courts  of  equity  will  not  interfere  at  all,  unless 
there  has  been  some  contrivance  or  management  to  draw  the  party 
into  drink,  or  some  unfair  advantage  taken  of  his  intoxication,  to 
obtain  an  unreasonable  bargain  or  benefit  from  him  (a).  For,  in 
general,  courts  of  equity,  as  a  matter  of  public  policy,  do  not  incline, 
on  the  one  hand,  to  lend  their  assistance  to  a  person  who  has  obtained 
an  agreement  or  deed  from  another  in  a  state  of  intoxication;  and,  on 
the  other  hand,  they  are  equally  unwilling  to  assist  the  intoxicated 
party  to  get  rid  of  his  agreement  or  deed,  merely  on  the  ground  of 
his  intoxication  at  the  time.  They  will  leave  the  parties  to  their 
ordinary  remedies  at  law,  unless  there  is  some  fraudulent  contrivance 
or  some  imposition  practised  (b). 

§  232.  It  is  upon  this  special  ground  that  courts  of  equity  have 
acted  in  cases  where  a  broader  principle  has  sometimes  been  supposed 
to  have  Tseen  upheld.  They  have,  indeed,  indirectly,  by  refusing 
relief,  sustained  agreements,  which  have  been  fairly  entered  into, 
although  the  party  was  intoxicated  at  the  time.  And  especially, 
they  have  refused  relief  where  the  agreement  was  to  settle  a  family 
dispute,  and  was  in  itself  reasonable  (c).  But  they  have  not  gone  the 
length  of  giving  a  positive  sanction  to  such  agreements,  so  entered 
into,  by  enforcing  them  against  the  party,  or  in  any  other  manner 
than  by  refusing  to  interfere  in  his  favour  against  them  (d). 

§  234.  Closely  allied  to  the  foregoing  are  cases  where  a  person, 
although  not  positively  non  compos,  or  insane,  is  yet  of  such  great 
weakness  of  mind  as  to  be  unable  to  guard  himself  against  imposi- 
tion, or  to  resist  importunity  or  undue  infliuenee.  And  it  is  quite 
immaterial  from  what  cause  such  weakness  arises ;  whether  it  arises 
from  temporary  illness,  general  mental  imbecility,  the  natural  inca- 
pacity of  early  infancy,  the  infirmity  of  extreme  old  age,  or  those 
accidental   depressions   which   result   from    sudden   fear,    or   constitu- 

(y)  See  Cook  v.  Claijworth,  18  Ves.  12. 

{z)  Cook  V.  ClaywoTth,  18  Ves.  12;  Lord  Dunboyne  v.  Mulvihill,  1  Bli.  137. 

(a)  Cook  V.  Clayworth,  18  Ves.  12 ;  Say  v.  Barwick,  1  Ves.  &  B.  195. 

(b)  Cooke  V.  Clayworth,  18  Ves.  12. 

(c)  Cory  V.  Cory,  1  Ves.  Sen.  19;  Dunnage  v.  White,  1  Swanst.  137,  150. 

(d)  Lightfoot  v.  Heron,  8  Y.  &  C.  Ex.  586;  Shaw  v.  Thackray,  1  Sm.  &  G.  537. 


§    231—237.]  ACTUAL   FRAUD.  97 

tional  despondency,  or  ovenvhelming  calamities  (e).  For  it  has  been 
well  remarked  that,  although  there  is  no  direct  proof  that  a  man  is 
non  compos,  or  delirious,  yet,  if  he  is  a  man  of  weak  understa,nding, 
and  is  harassed  and  uneasy  at  the  time,  or  if  the  deed  is  executed  by 
him  in  extremis,  or  when  he  is  a  paralytic,  it  cannot  be  supposed  that 
he  had  a  mind  adequate  to  the  business  which  he  was  about,  and  he 
might  be  very  easily  imposed  upon.  "  It  is  not  every  bargain  which 
distress  may  induce  one  man  to  offer,  that  another  is  at  liberty  to 
accept  "  (/). 

§  237.  The  language  of  Lord  Wynford,  in  Blackford  v. 
Ohristiam.  (g),  applies  a  mode  of  reasoning  to  the  subject  compatible  at 
once  with  the  dictates  of  common  sense  and  legal  exa-ctness  and  pro- 
priety. "  The  law  will  not  assist  a  man  who  is  capable  of  tailing  care 
of  his  own  interest,  except  in  cases  where  he  has  been  imposed  upon 
by  deceit,  against  which  ordinary  prudence  could  not  protect  him. 
If  a  person  of  ordinary  understanding,  on  whom  no  fraud  has  been 
practised,  makes  an  imprudent  bargain,  no  court  of  justice  can  release 
him  from  it.  Inadequacy  of  consideration  is  not  a  substantial  ground 
for  setting  aside  a  conveyance  of  property.  Indeed,  from  the  fluc- 
tuation of  prices,  owing  principally  to  the  gambling  spirit  of  speculation 
that  now  unhappily  prevails,  it  would  be  difficult  to  determine  what 
is  an  adequate  price  for  anything  sold.  At  the  time  of  the  sale  the 
buyer  properly  calculates  on  the  rise  in  the  value  of  the  article  bought, 
of  which  he  would  have  the  advantage.  He  must  not,  therefore, 
complain  if  his  speculations  are  disappointed,  and  he  becomes  a  loser, 
instead  of  a  gainer,  by  his  bargain.  But  those  who,,  from  imbecility 
of  mind,  are  incapable  of  taking  care  of  themselves,  are  under  the 
special  protection  of  the  law.  The  strongest  mind  cannot  always 
contend  with  deceit  and  falsehood.  A  bargain,  therefore,  into  which 
a  weak  one  is  drawn,  under  the  influence  of  either  of  these,  ought 
not  to  be  held  valid,  for  the  law  requires  that  good  faith  should  be 
observed  in  all  transactions  between  man  and  man."  And,  addressing 
himself  to  the  case  before  him,  he  added :  "If  this  conveyance  could 
be  impeached  on  the  ground  of  the  imbecility  of  Fitzsimmons  only, 
a  sufficient  case  has  not  been  made  out  to  render  it  invalid ;  for 
the  imbecility  must  be  such  as  would  justify  a  jury,  under  a  commis- 
sion of  lunacy,  in  putting  his  property  and  person  under  the  protection 
of  the  chancellor.  But  a  degree  of  weakness  of  intellect,  far  below 
that  which  would  justify  such  a  proceeding,  coupled  with  other  cir- 
cumstances, to  show  that  the  weaJmess,  such  as  it  was,  had  been 
taken  advantage  of,  will  be  sufficient  to  set  aside  any  important 
deed"  Qi). 

(e)  Gibson  v.  Russell,  2  Y.  &  C.  Ch.  104. 
(/)  Grant,  M.E.,  Bowes  v.  Heaps,  3  Ves.  &  B.  119. 
(g)  Blachford  v.  Christian,  1  Knapp,  77. 
(h)  Ibid. 
E.J.  7 


98  EQUITY   JURISPKUDENCE.  [CH     VI. 

§  238.  The  doctrine,  therefore,  may  be  laid  down  as  generally  true 
"  that  the  acts  and  contracts  of  persons  who  are  of  weak  understand- 
ings, and  who  are  thereby  liable  to  imposition,  will  be  held  void  in 
courts  of  equity,  if  the  nature  of  the  act  or  contract  justify  the  con- 
clusion that  the  party  has  not  exercised  a  deliberate  judgment,  but 
that  he  has  been  imposed  upon,  circumvented,  or  overcome  by 
cunning  or  artifice,  or  undue  influence  "  (i).  It  has  been  said  that  the 
common  law  required  that  a  person,  to  dispose  of  his  property  by  will 
should  be  of  sound  and  disposing  memory,  which  imports  that  the 
testator  should  have  understanding  to  dispose  of  his  estate  with  judg- 
ment and  discretion;  and  this  is  to  be  collected  from  his  words,  actions, 
and  behaviour  at  the  tame,  and  not  merely  from  his  being  able  to  give 
a  plain  answer  to  a  common  question  (fe).  The  doctrine  has  long  since 
been  abandoned.  But,  as  fraud  in  regard  to  the  making  of  wills  of  real 
estate  belonged  in  a  peculiar  manner  to  courts  of  law,  and  fraud  in 
regard  to  personal  estate  to  the  Court  of  Probate,  although  some- 
times relievable  in  equity,  that  part  of  the  subject  seems  more  proper 
to  be  discussed  in  a  different  treatise  (I). 

§  239.  Cases  of  an  analogous  nature  may  easily  be  put,  where  the 
party  is  subjected  to  undue  influence,  although  in  other  respects  of 
competent  understanding.  As,  where  he  does  an  act,  or  makes  a 
contract,  when  he  is  under  duress,  or  the  influence  of  extreme  terror, 
or  of  threats,  or  of  apprehensions  short  of  duress.  For,  in  cases  of 
this  sort,  he  has  no  free  will,  but  stands  in  vinculis.  And  the 
constant  rule  in  equity  is,  that,  where  a  party  is  not  a  free  agent, 
and  is  not  equal  to  protecting  himself,  the  court  will  protect  him  (m). 
The  maxim  of  the  common  law  is:  "  Quod  aliks  bonuni  et  justum 
est,  si  per  vim  vel  fraudem  petatur,  malum  et  injustum  efficitur  "  {n). 
On  this  account  courts  of  equity  watch  with  extreme  jealousy  all 
contracts  made  by  a  party  while  under  imprisonment;  and,  if  there 
is  the  slightest  ground  to  suspect  oppression  or  imposition  in  such 
cases,  they  will  set  the  contracts  aside  (o).  Illiteracy  (p),  or  circum- 
stances of  extreme  necessity  and  distress  of  the  party,  although  not 
accompanied  by  any  direct  restraint  or  duress,  may,  in  like  manner,  so 
entirely  overcome  his  free  agency  as  to  justify  the  court  in  setting 


(i)  See  Gartside  v.  Isherwood,  1  Bro.  C.  C.  560,  561. 
(ft)  Waring  v.  Waring,  6  Moo.  P.  C.  341. 

(!)  Jenkins  v.   Moore,  14  Ch.  D.  674;  Allen  v.  McPherson,  1  H.   L.   C.   191; 
Melhuish  v.  Milton,  3  Ch.  D.  27. 

(m)  Baker  v.  Monk,  4  De  G-.  J.  &  S.  388;  Rees  v.  De  B/rnardy,  [1896]  2  Ch. 

(n)  Fermor's  Case,  3  Co.  78. 

(o)  Roy  V.  Duke  of  Beaufort,  2  Atk.  190. 

(p)  Price  V.  Price,  1  De  G.  M.  &  G.  308. 


§    238—240.]  ACTUAL   FRAUD.  99 

aside  a  contract  made  by  him,   on  account  of  some  oppression,   or 
fraudulent  advantage,  or  imposition,  attendant  upon  it  (g). 

§  240.  The  acts  and  contracts  of  infants,  that  is,  of  all  persons 
under  twenty-one  years  of  age  (who  are  by  the  common  law  deemed 
infants),  are,  a  fortiori,  treated  as  falling  within  the  like  predica- 
ment. For  infants  are  by  law  generally  treated  as  having  no 
capacity  to  bind  themselves,  from  tlie  want  of  sufficient  reason  and 
discernment  of  understanding;  and,  tiherefore,  their  grants  and  those 
of  lunatics  are,  in  many  respects,  treated  as  parallel  both  in  law  and 
reason.  There  are,  indeed,  certain  excepted  cases,  in  which  infants 
are  permitted  by  law  to  bind  themselves  by  their  acts  and  contracts. 
But  these  are  all  of  a  special  nature;  as,  for  instance,  infants  may 
bind  themselves  by  a  contract  for  necessaries,  suitable  to  their  degree 
and  quality  (r) ;  or  by  a  contract  of  hiring  and  services  for  wages  (s) ;  or 
by  some  act  which  the  law  requires  them  to  do.     And,   generally, 

(g)  Fry  v.  Lane,  40  Ch.  D.  312.  The  doctrine  of  the  common  law,  upon  the 
subject  of  avoiding" contracts  upon  the  ground  of  mental  weakness,  or  force,  or  undue 
influence,  does  not  seem,  in  any  essential  manner,  to  differ  from  that  adopted  in  the 
Soman  law,  or  in  the  law  of  modern  continental  Europe.  Thus  we  find  in  the  Roman 
law,  that  .contracts  may  be  avoided,  not  only  for  incapacity,  but  for  mental  imbecility, 
the  use  of  force,  or  the  want  of  liberty  in  regard  to  the  party  contracting.  Ait  Prsstor, 
Quod  metus  causa  gestum  erit,  ratum  non  habebo.  Dig.  Lib.  4,  tit.  2,  f.  1.  But 
then  the  force,  or  fear,  must  be  of  such  a  nature  as  may  well  overcome  a  firm  man. 
Metum  accipiendum,  Labeo  dicit,  non  queralibet  timorem,  sed  majoris  malitatis.  Dig. 
Lib.  4,  tit.  2,  f.  6.  The  party  must  be  intimated  by  the  apprehension  of  some  serious 
evil  of  a  present  and  pressing  nature.  Metum  non  vani  hominis  sed  qui  merito  et  in 
hominem  constantissimum  cadat.  Dig.  Lib.  4,  tit.  2,  f.  6.  He  must  act,  Metu 
majoris  malitatis;  and  feel  that  it  is  immediate;  Metum  presentum  accipere  debemus, 
non  suspicionem  inferendi  ejus.  See  Dig.  Lib.  4,  tit.  2,  f.  9;  1  Domat,  Civil  Law,  B.  1, 
tit.  18,  §  2,  art.  1  to  10.  Pothier  gives  his  assent  to  this  general  doctrine;  but  he 
deems  the  civil  law  too  rigid  in  requiring  the  menace  or  force  to  be  such  as  might 
intimidate  a  constant  or  firm  man ;  and  very  properly  thinks  that  regard  should  be  had 
to  the  age,  sex,  and  condition  of  the  parties.  Pothier  on  Olig.  n.  25.  Mr.  Evans 
thinks  that  any  contract  produced  by  the  actual  intimidation  of  another  ought  to  be 
held  void,  whether  it  were  the  result  of  personal  infirmity  merely,  or  of  such  circum- 
stances as  might  ordinarily  produce  the  like  effect  upon  others.  1  Evans,  Pothier  on 
Oblig.  n.  25,  note  (a),  p.  18.  The  Scottish  law  seems  to  have  followed  out  the  line  of 
reasoning  of  the  Eoman  law  with  a  scrupulous  deference  and  closeness.  Brsk.  Inst. 
B.  4,  tit.  1,  §  26.  The  Scottish  law  also  puts  the  case  of  imposition  from  weakness 
upon  a  clear  ground.  "  Let  one  be  evec  so  subject  to  imposition,  yet,  if  he  has  under- 
standing enough  to  save  himself  from  a  sentence  of  idiocy,  the  law  makes  him  capable 
of  managing  his  own  affairs,  and  consequently  his  deeds,  however  hurtful  they  may 
be  to  himself,  must  be  effectual,  unless  evidence  be  brought,  that  they  have  been 
drawn  or  extorted  from  him  by  unfair  practices.  Yet  where  lesion  (injury)  in  the 
deed  and  facility  in  the  grantor  concur,  the  mast  slender  circumstances  of  fraud  or  cir- 
cumvention are  sufficient  to  set  it  aside."  Ersk.  Inst.  B.  4,  tit.  1,  §  27.  Mr.  Bell  ha.9 
also  stated  the  same  principle  in  the  Scottish  law  with  great  clearness.  There  may  be 
in  one  of  perfect  age  a  degree  of  weakness,  puerility,  or  prodigality,  which  although 
not  such  as  to  justify  a  verdict  of  insanity,  and  place  him  under  guardianship,  as 
insane,  may  yet  demand  soma  protection  for  him  against  unequal  or  gratuitous  aliena- 
tion.    1  Bell,  Comm.  139.     See  Harvey  v.  Maunt,  8  Beav.  439. 

(r)  Sale  of  Goods  Act,  1894,  =*.  2;  Nash  v.  Inman,  [1908]  2  K.  B.  1 ;  Stocks  v. 
Wilson,  [1913]  2  K.  B.  235. 

is)  Roberts  v.  Gray,  [1913]  1  K.  B.  520. 


100  EQUITY   JURISPRUDENCE.  [CII.    VI. 

infants  are  favoured  by  the  law,  as  well  as  by  equity,  in  all  things 
which  are  for  their  benefit,  and  are  saved  from  being  prejudiced  by 
anything  to  their  disadvantage.  But  this  rule  is  designed  as  a  shield 
for  their  own  protection;  it  is  not  allowed  to  operate  as  a  fraud  or 
injustice  to  others ;  at  least  not  where  a  court  of  equity  has  authority 
to  reach  it  in  cases  of  meditated  fraud. 

§  241.  In  regard  to  the  acts  of  infants,  some  are  voidable  and 
some  are  void;  and  so,  also,  in  regard  to  their  contracts,  some  are 
voidable  and  some  are  void.  Where  they  are  utterly  void,  they  are 
from  the  beginning  mere  nullities,  and  incapable  of  any  operation. 
But  where  they  are  voidable,  it  is  in  the  election  of  the  infant  to 
avoid  them  or  not,  which  he  may  do,  when  he  arrives  at  full  age.  In 
this  respect,  he  is  by  law  differently  placed  from  idiots  and  lunatics; 
for  the  latter,  as  we  "have  seen,  are  not,  or  at  least  may  not,  at  law,  be 
allowed  to  stultify  themselves.  But  an  infant  may,  at  his  coming  of 
age,  avoid  or  confirm  any  voidable  act  or  contract  at  his  pleasure. 
In  general,  where  a  contract  may  be  for  the  benefit  or  to  the  prejudice 
of  an  infant,  he  may  avoid  it  as  well  at  law  as  in  equity.  Where 
it  can  never  be  for  his  benefit,  it  is  utterly  void.  x\nd  in  respect  to 
the  acts  of  infants  of  a  more  solemn  nature,  such  as  deeds,  gifts,  and 
grants,  this  distinction  has  been  insisted  on,  that  such  as  do  take 
effect  by  delivery  of  his  hand  are  voidable ;  but  such  as  do  not  so 
take  effect  are  void  (f).  In  a  late  case  it  was  held  that  an  infant's 
contraict  in  respect  of  a  subject  of  a  permanent  character  is  not  void, 
but  merely  voidable ;  and  if  the  infant  wishes  to  repudiate  such  a 
contra-ct,  he  must  do  so  before  or  within  a  reasonable  time  after  he 
attains  full  age  (u). 

§  241a.  The  power  of  infants  to  contract  has  been  further  restricted 
by  the  Infants'  Belief  Act,  1874  (37  &  38  Vict.  c.  62),  and  the  Betting 
and  Loans  (Infants)  Act,  1892.  An  infant  may  make  a  valid  settle- 
ment upon  marriage  if  the  sanction  of  the  court  be  obtained  under  the 
Infants'  Settlement  Act,  1855  (a;). 

§  242.  But,  independently  of  these  general  grounds,  it  is  clear, 
that  contracts  made  and  acts  done  by  infants  in  favour  of  persons 
knowing  their  imbecility  and  want  of  discretion,  and  intending  to 
take  advantage  of  them,  ought,  upon  general  principles,  to  be  held 
void,  and  set  aside,  on  account  of  fraud,  circumvention,  imposition, 
or  undue  influence.  And  it  is  upon  this  ground  of  an  inability  to 
give  a  deliberate  and  binding  consent,  that  the  nullity  of  such  acts 
and  contracts  is  constantly  put  by  publicists  and  civilians.  Infans 
non  multum  a  furioso  distat. 

(t)  Zouch  V.  Parsons,  3  Burr.  1794;  Keane  v.  Boycott,  2  H.  Bl.  511;  In  re 
Maskell  and  Goldfinch's  Cont.,  [1895]  2  Ch.  525. 

(tt)  Whittingham  v.  Murdy,  60  L.  T.  956. 

(x)  Seaton  v.  Seaton,  13  App.  Cas.  61;  Duncan  v.  Dixon,  44  Ch.  D.  211;  Edwards 
V.  Carter,  [1893]  A.  C.  860. 


§  241 — 245.]  ACTUAL  FRAUD.  101 

§  242a.  If  an  infant  obtains  money  or  goods  by  fraudulently  repre- 
senting hinaself  to  be  of  full  age,  he  becomes  liabl|e"to  the  other 
contracting  party,  but  the  liability  only  arises  upon  the  act  of  the 
infant. — concealment  is  insufficient  to  fix  him  with  liability  {y). 

§  243.  In  regard  to  femes  covert,  the  case  is  still  stronger;  for, 
generally  speaking,  at  law  they  had  no  capacity  to  do  any  acts,  or 
to  enter  into  any  contracts;  and  such  acts  and  contracts  were  treated 
as  mere  nullities.  A  married  woman  could  act  as  the  agent  of  her 
husband  at  law  (a).  Equity  followed  the  law  except  as  regards  the 
wife's  equitable  interest  in  property,  in  respect  to  which  she  could 
contract  and  make  herself  liable  in  contract  in  respect  of  her  separate 
estate  (a).  This  power  has  since  been  confirmed  and  extended  by  the 
Married  Women's  Property  Act,  1882.  If  the  married  woman  was 
restrained  from  anticipation,  she  could  not  be  made  liable  by  reason 
of  her  fraudulent  concealment  or  denial  of  a  marriage  or  of  the 
restraint  (b). 

§  244.  Of  a  kindred  nature  to  the  cases  already  considered,  are 
cases  of  bargains  of  such  an  unconscionable  nature,  and  of  such  gross 
inequality,  as  naturally  lead  to  the  presumption  of  fraud,  imposition, 
or  undue  influence.  This  is  the  sort  of  fraud  to  which  Lord  Hard- 
wicke  alluded,  in  the  passage  already  cited  (c),  when  he  said,  that  they 
were  such  bargains  that  no  man  in  his  senses  and  not  under  delusion 
would  make,  on  the  one  hand,  and  as  no  honest  and  fair  man  would 
accept,  on  the  other,  being  inequitable  and  unconscientious  bar- 
gains (d).  Mere  inadequacy  of  price,  or  any  other  inequality  in  the 
bargain,  is  not,  however,  to  be  understood  as  constituting,  per  se,  a 
ground  to  avoid  a  bargain  in  equity  (e).  For  courts  of  equity,  as  well 
as  courts  of  law,  act  upon  the  ground  that  every  person  who  is  not, 
from  his  peculiar  condition  or  circumstances,  under  disability,  is 
entitled  to  dispose  of  his  property  in  such  manner  and  upon  such  terms 
as  he  chooses ;  and  whether  his  bargains  are  wise  and  discreet,  or  profit- 
able or  unprofitable,  or  otherwise,  are  considerations,  not  for  courts  of 
justice,  but  for  the  party  himself  to  deliberate  upon. 

§  245.  Inadequacy  of  consideration  is  not,  then,  of  itself,  a  dis- 
tinct principle  of  relief  in  equity.  The  common  law  knows  no 
such  principle.     The  consideration,  be  it  more  or  less,  supports  the 


iy)  Stikeman   v.  Dawson,  1  De  G.  &  Sm.  90 ;   Stocks  v.  Wilson,  [1913]  2  K.  3. 
235;  Leslie,  Lim.  v.  Shiell,  29  L.  T.  E.  554. 
(z)  Debenham  v.  Mellon,  6  App.  Caa.  24. 

(a)  Hulme  v.  Tennant,  1  Bro.  C.  C.  16;  Pike  v.  Fitzgibbon,  17  Ch.  D.  454. 

(b)  Jackson  v.  Hobhouse,  2  Mer.  483;  Cannam  v.  Parmer,  3  Ex.  698;  Sharpe  v. 
Foy,  L.  E.  4  Ch.  35;  Stanley  v.  Stanley,  7  Ch;  D.  589. 

.(c)  Ante,  §  188. 

(d)  Chesterfield  v.  Janssen,  2  Ves.   Sen.  155;  Grant,  M.E.,  Bowes  v.   Heaps, 
3  Ves.  &  B.  119. 

(e)  Wigram,  V.-C,  Borell  v.  Dann,  2  Hare,  440;  Middleton  v.  Brown,  47  L.  J. 
Ch.  411. 


102  EQUITY   JUEISPEDDENCE.  [CH.    VI. 

contract  (/).  Common  sense  knows  no  such  principle.  The  value  of  a 
thing  is  what  it  will  produce ;  and  it  admits  of  no  precise  standard.  It 
must  be  of  its  nature  fluctuating,  and  will  depend  upon  ten  thousand 
different  circumstances.  One  man,  in  the  disposal  of  his  property, 
may  sell  it  for  less  than  another  would.  He  may  sell  it  under  a 
pressure  of  circumstances,  which  may  induce  him  to  part  with  it  at  a 
particular  time.  If  courts  of  equity  were  to  unravel  all  these  trans- 
actions, they  would  throw  everything  into  confusion,  and  set  afloat 
the  contracts  of  mankind  (g).  Such  a  consequence  would,  of  itself,  be 
sufficient  to  show  the  inconvenience  and  impracticability,  if  not  the 
injustice,  of  adopting  the  doctrine  that  mere  inadequacy  of  considera- 
tion should  form  a  distinct  ground  for  relief. 

§  246.  Still,  however,  there  may  be  such  an  unconscionableness 
or  inadequacy  in  a  bargain,  as  to  demonstrate  some  gross  imposition 
or  some  undue  influence ;  and  in  such  cases  courts  of  equity  ought 
to  interfere,  upon  the  satisfactory  ground  of  fraud.  But  then  such 
unconscionableness  or  such  inadequacy  should  be  made  out  as  would 
(to  use  an  expressive  phrase)  shock  the  conscience,  and  amount  in 
itself  t-o  conclusive  and  decisive  evidence  of  fraud  (h).  And  where 
tihere  are  other  ingredients  in  the  case,  of  a  suspicious  nature,  or 
peculiar  relations  between  the  parties,  gross  inadequacy  of  price  must 
necessarily  furnish  the  most  vehement  presumption  of  fraud  (z). 

§  247.  The  difficulty  of  adopting  any  other  rule,  which  would  not, 
in  the  common  intercourse  and  business  of  human  life,  be  found 
productive  of  serious  inconvenience  and  endless  litigation,  is  conceded 
by  civilians  and  publicists ;  and,  for  the  most  part,  they  seem  silently 
to  abandon  cases  of  inadequacy  in  bargains  where  there  is  no  fraud, 
to  the  forum  of  conscience,  and  morals,  and  religion.  Thus,  Domat, 
after  remarking  that  the  law  of  nature  obliges  us  not  to  take  advan- 
tage of  the  necessities  of  the  seller,  to  buy  at  too  low  a  price,  adds : 
"  But  because  of  the  difficulties  in  fixing  the  just  price  of  things, 
and  of  the  inconveniences,  which  would  be  too  many  and  too  great, 
if  all  sales  were  annulled,  in  which  the  things  were  not  sold  at  their 
just  value,  the  laws  connive  at  the  injustice  of  buyers,  except  in  the 
sale  of  lands,  where  the  price  given  for  them  is  less  than  half  of  their 
value  "  (fe).  So  that,  in  the  civil  law,  sales  of  personal  property  are 
usually  without  redress;  and  even  sales  of  immovable  property  are  in 
the  same  predicament,  unless  the  inadequacy  of  price  amounts  to 
one-half  the  value :  a  rule  purely  artificial,  and  which  must  leave 
behind  it  many  cases  of  gross  hardship  and  unconscionable  advantage. 


(/)  Haigh  v.  Brooks,  10  A.  &  E.  309. 
(g)  Per  Byre  Ch.  B.  in  Grijfith  v,  Spratley,  1  Cox  383. 
■     (h)  Coles  v.  Trecothick,  9  Vee.  246;  Copis  v.  Middletoii,  2  Mad.  409. 
(i)  Stillwell  V.  Wilkinson,  Jac.  280. 

(fc)  1  Domat,  Civil  Law,  B.  1,  tit.  2,  §  3,  9,  art.  1.     See  also  Heineccius,  Elem. 
N.  et  G.  §  352 ;  id.  §  340. 


§  246—248.]  ACTUAL  fraud.  103 

The  civil  law,  therefore,  in  fixing  a  moiety,  and  confining  it  to  immov- 
able property,  admits,  in  the  most  clear  manner,  the  impracticability 
of  providing  for  all  cases  of  this  nature.  "  Rem  majoris  pretii  "  (says 
the  Code)  ' '  si  tu,  vel  pater  tuus  minoris  distraxerit ;  humanum  est, 
ut  vel  pretium  te  restituente  ©mptoribus,  f  undum  venundatum  recipias, 
auctoritate  judicis  intercedente ;  vel  si  emptor  elegerit,  quod  deest 
justo  pretio,  recipias"  (I);  thus  laying  down  the  broadest  rule  of 
equity  and  morals,  adapted  to  all  cases.  But  the  law-giver,  struck 
with  the  unlimited  nature  of  the  proposition,  immediately  adds  in 
the  same  law,  that  the  party  shall  not  be  deemed  to  have  sold  at  an 
undervalue,  unless  it  amoimts  to  one-half.  "  Minus  autem  pretium 
esse  videtur,  si  nee  dimidia  pare  veri  pretii  soluta  sit ' '  (m) ;  a  logic 
not  very  clear  indisputable  (n).  And  yet  the  civil  law  was  explicit 
enough  in  denouncing  fraudulent  bargains.  "  Si  pater  tuus  per  vim 
coactus  domum  vendidit;  ratum  non  habebitur,  quod  non  bona  iide 
gestum  est.  Malse  fidei  emptio  irrita  est  (o).  Ad  rescindendam  ven- 
ditionem,  et  malse  fidei  probationem,  hoc  solum  non  sufficit.  quod, 
magno  pretio  fundum  comparatum,  minoris  distraotum  esse  com- 
memoras  "  (pi).  So  that  we  see,  in  this  last  passage,  the  very  elements 
of  the  doctrine  of  equity  on  this  subject. 

§  248.  Pothier,  too,  of  whom  it  has  been  remarked,  that  he  is 
generally  swayed  by  the  purest  morality,  says:  "  Equity  ought  to 
preside  in  all  agreements.  Hence  it  follows,  that,  in  contracts  of 
mutual  interest,  where  one  of  the  contracting  parties  gives  or  does 
something,  for  the  purpose  of  receiving  something  else,  as  a.  price  and 
compensation  for  it,  an  injury  suffered  by  one  of  the  contracting  parties, 
even  when  the  other  has  not  had  recourse  to  any  artifice  to  deceive 
him,  is  alone  sufiicient  to  render  such  contracts  vicious.  For  as 
equity,  in  matters  of  commerce,  consists  in  equality,  when  that  equity 
is  violated,  as  when  one  of  the  parties  gives  more  than  he  receives, 
the  contract  is  vicious  for  want  of  the  equity  which  ought  to  preside 
in  it."  He  immediately  adds:  "  Although  any  injury  whatever 
renders  contracts  inequitable,  and  consequently  vicious,  and  the 
principle  of  moral  duty  (le  for  mterieur)  induces  the  obligation  of 
supplying  the  just  price;  yet  persons  of  full  age  are  not  allowed  in 
point  of  law  to  object  to  their  agreements  as  being  injurious,  unless 


(I)  Cod.  Lib.  4,  tit.  44,  1.  2;  id.  1.  9;  Heinecc.  Blem.  J.  N.  and  N.  §  340,  362; 
post,  §  248. 

(m)  Cod.  Lib.  4,  tit.  44,  1.  2;. id.  1.  9;  1  Domat,  Civil  Law,  B.  1,  tit.  2,  §  9. 

(n)  In  another  place  the  civil  law,  in  relation  .to  sales,  seems  plainly  to  wink  out 
of  sight  the  immorality  of  inadequate  bargains.  Quemadmodum  in  emendo  et  vendendo 
naturaliter  concessum  est,  quod  pluris  sit,  minoris  emere,  quod  minoris  sit,  pluris 
vendere.  Bt  ita  invicem  se  circumscribere ,  ita  in  locationibus  quoque  et  conditionibus 
juris  est.     Dig.  Lib.  19,  tit.  2,  f.  22,  §  3;  1  Domat,  Civil  Law,  B.  1,  tit.  18,  p.  247. 

(o)  Cod.  Lib.  4,  tit.  44,  1.  1,  4,  8. 

(p)  Cod.  Lib.  4,  tit.  44,  1.  4;  id.  1.  8,  10.  See  1  Domat,  B.  1,  tit.  18,  Vices  of 
Covenants,  p.  247. 


104  EQUITY   JURISPRUDENCE.  [CH.    VI. 

the  injury  be  excessive;  a  rule  wisely  established  for  the  security 
and  liberty  of  commerce,  which  requires  that  a  person  shall  not  be 
easily  permitted  to  defeat  his  agreements;  otherwise  we  should  not 
venture  upon  making  any  contract,  for  fear  that  the  other  party, 
imagining  himself  to  be  injured  by  the  terms  of  it,  would  oblige  us  to 
follow  it  by  a  lawsuit.  That  injury  is  commonly  deemed  excessive 
which  amounts  to  more  than  a  moiety  of  the  just  price.  And  the 
person  who  has  suffered  such  an  injury  may,  within  ten  years,  obtain 
letters  of  rescission  for  annulling  the  contract "  (q). 

§  249.  After  such  concessions  we  may  well  rest  satisfied  with  the 
practical  convenience  of  the  rule  of  the  common  law,  which  does  not 
make  the  inequality  of  the  bargain  depend  solely  upon  the  price,  but 
upon  the  other  attendant  circumstances  which  demonstrate  imposition, 
or  some  undue  influence.  The  Scottish  law  has  adopted  the  same 
practical  doctrine  (r). 

§  250.  This  part  of  the  subject  may  be  concluded  by  the  remark 
that  courts  of  equity  will  not  relieve  in  all  cases,  even  of  very  gross 
inadequacy,  attended  with  circumstances  which  might  otherwise  induce 
them  to  act,  if  the  parties  cannot  be  placed  in  statu  quo;  as,  for 
instance,  in  cases  of  marriage  settlements,  for  the  court  cannot  unmarry 
the  parties  (s). 

§  251.  Cases  of  surprise,  and  sudden  action  without  due  delibera- 
tion, may  properly  be  referred  to  the  same  head  of  fraud  or  imposi- 
tion (t).  An  undue  advantage  is  taken  of  the  party  under  circumstances 
which  mislead,  confuse,  or  disturb  the  just  result  of  his  judgment,  and 
thus  expose  him  to  he  the  victim  of  the  artful,  the  importunate,  and 
the  cunning.  It  has  been  very  justly  remarked  by  an  eminent  writer 
that  it  is  not  every  surprise  which  will  a'void  a  deed  duly  made.  Nor 
is  it  fitting,  for  it  would  occasion  great  uncertainty,  and  it  would  be 
impossible  to  fix  what  is  meant  by  surprise,  for  a  man  may  be  said 
to  be  surprised  in  every  action  which  is  not  done  with  so  much 
discretion  as  it  ought  to  be.  The  surprise  here  intended  must  be 
accompanied  with  fraud  and  circumvention,  or  at  least  by  such  cir- 
cumstances as  demonstrate  that  the  party  had  no  opportunity  to  use 
suitable  deliberation,  or  that  there  was  some  influence  or  management 
to  mislead  him.  If  proper  time  is  not  allowed  to  the  party  and  he 
acts  improvidently,  if  he  is  importunately  pressed,  if  those  in  whom 
he  places  confidence  make  use  of  strong  persuasions,  if  he  is  not 
fully  aware  of  the  consequences,  but  is  suddenly  drawn  in  to  act,  if 
he  is  not  permitted  to  consult  disinterested  friends  or  counsel  before 
he  is  called  upon  to  act,  in  circumstances  of  sudden  emergency,  or 
unexpected  right  or  acquisition ;  in  these  and  many  like  cases,  if  there 

(g)  Pothier  on  Oblig.  n.  33,  34,  by  Evans;  ante,  §  347. 
(r)  Erskine,  Inst.  B.  4,  tit.  1,  §  27;  ante,  §  247. 
(s)  1  Mad.  Pr.  Ch.  215 ;  Ncnth  v.  Ansall,  2  P.  Will.  619. 
(t)    Evans  v.  Llewellin,  1  Cox,  333. 


§  249—255.]  ACTUAL  fraud.  105 

has  been  great  inequality  in  the  bargain,  courts  of  equity  will  assist 
the  party  upon  the  ground  of  fraud,  imposition,  or  unconscionable 
advantage  (u). 

§  252.  Many  other  cases  might  be  put,  illustrative  of  what  is 
denominated  actual  or  positive  fraud.  Among  these  are  cases  of 
the  fraudulent  suppression  or  destruction  of  deeds  and  other  instru- 
ments in  violation  of,  or  injury  to,  the  rights  of  others  (x);  fraudulent 
awards,  with  an  intent  to  do  injustice  (y) ;  fraudulent  appointments  and 
revocations,  under  powers  (z),  fraudulent  prevention  of  acts  to  be  done 
for  the  benefit  of  others,  under  false  statements  or  false  promises  (a) ; 
frauds  in  relation  to  trusts  of  a  secret  or  special  nature  (b) ;  frauds  in 
verdicts,  judgments,  decrees,  and  other  judicial  proceedings  (c) ;  frauds 
in  the  confusion  of  boundaries  of  estates  and  matters  of  partition  and 
dower ;  frauds  in  the  administration  of  charities ;  and  frauds  upori 
creditors,  and  other  persons,  standing  upon  a  like  equity. 

§  253.  Some  of  the  cases  falling  under  each  of  these  heads  belong 
to  that  large  class  of  frauds  commonly  called  constructive  frauds, 
which  will  naturally  find  a  place  in  our  future  pages.  But,  as  it  is 
the  object  of  these  Commentaries,  not  merely  to  treat  of  questions  of 
relief,  but  also  of  principles  of  jurisdiction,  a  few  instances  will  be  here 
adduced  as  examples  of  both  species  of  fraud. 

§  254.  In  the  first  place,  as  to  the  suppression  and  destruction  of 
deed  and  wills  and  other  instruments.  If  an  heir  should  suppress 
them  in  order  to  prevent  another  party,  as  a  grantee  or  devisee,  from 
obtaining  the  estate  vested  in  him  thereby,  courts  of  equity,  upoij 
due  proof  by  other  evidence,  would  grant  relief,  and  perpetuate  the 
possession  and  enjoyment  of  the  estate  in  such  grantee  or  devisee  (d). 
For  cases  for  relief  against  spoliation  come  in  a  favourable  light  before 
court®  of  equity,  in  odium  spoliatoris ;  and  where  the  contents  of  a 
suppressed  or  destroyed  instrument  are  proved,  the  party  (as  he  ought) 
will  receive  the  same  benefit  as  if  the  instrument  were  produced  (e). 

§  255.  In  the  next  place,  frauds  in  regard  to  powers  of  appoint- 
ment. A  person  having  a  power  of  appointment  for  the  benefit  of 
others  shall  not,  by  any  contrivance,  use  it  for  his  own  benefit.  Thus, 
if  a  parent  has  a  power  to  appoint  to  such  of  his  children  as  he  may 

(u)  Evans  v.  LlewelUn,  1  Cox  439;  Mcrq.  Townshend  v.  Stangroom,  6  Ves.  338; 
Pickett  v.  Loggon,  14  Ves.  215. 

(x)  Sharpe  v.  Foy,  L.  E.  4  Ch.  35. 

iy)  Moseley  v.  Simpson,  L.  E.  16  Eq.  226. 

(«)  In  re  Marsden's  Trust,  4  Drew.  594. 

(a)  Luttrell  v.  Lord  Waltham,  cited  14  Ves.  290. 

(b)  Duke  of  Portland  v.  Topham,  11  H.  L.  C.  32 ;  further  proceedings  Topham  v. 
Duke  of  Portland,  L.  E.  5  Ch.  40. 

(c)  Exp.  White,  4  H.  L  C.  313;  Shedden  v.  Patrick,  1  Macq.  535;  Flower  v. 
Lloyd,  10  Ch.  D.  327 ;  Williams  v.  Preston,  20  Ch.  D.  672. 

id)  Hampden  v.  Hampden,  1  Bro.  P.  C.  250;  Tucker  v.  Phipps,  3  Atk.  358. 

(e)  Mallet  v.  Halfpenny,  cited  Prec.  Ch.  404;  Farrer  v.  Hutchinson,  3  Y.  &  C. 
Ex.  692.  For  a  case  of  fraudulent  mutilation  of  marriage  register  where  relief  was 
denied  by  reason  of  lapse  of  time,  see  Chatham  v.  Hoare,  L.  E.  9  Eq.  571. 


106  EQUITY   JURISPRUDENCE.  [CH.    VI. 

choose,  he  shall  not,  by  exercising  it  in  favour  of  a  child  in  a 
consumption,  gain  the  benefit  of  it  himself,  or  by  a  secret  agreement 
with  a  child,  in  whose  favour  he  makes  it,  derive  a  beneficial  interest 
from  the  execution  of  it  (/).  A  donee  is  not  entitled  to  exercise  a 
power  of  appointment  so  as  to  benefit  a  person  not  an  object  of  the 
power  (g),  special  powers  being  regarded  as  fiduciary  in  the  eyes  of  a 
court  of  equity  (h).  Upon  this  principle  where  a  parent,  having  a 
power  to  appoint  among  his  children,  made  an  illusory  appointment, 
by  giving  to  one  child  a  nominal  and  liot  a  substantial  share;  for,  in 
such  a  case,  courts  of  equity  would  treat  the  execution  as  a  fraud 
upon  the  power  (j).  But  by  force  of  the  Illusory  Appointments  Act, 
1  "Will.  IV.  c.  46,  and  the  37  &  38  Vict.  c.  37,  the  donee  of  a  power 
may  now  exclude  any  object  of  the  power  unless  the  instrument 
creating  the  power  shall  declare  the  amount  or  share  from  which  no 
object  of  the  power  shall  be  excluded  (fe). 

§  255  a.  There  were  decisions,  that  a  power  given  to  raise  portions, 
being  a  discretionary  trust,  did  not  authorise  the  donee  to  make  an 
appointment  giving  vested  interests  to  children  of  tender  years,  and 
that  if  such  an  appointment  were  made,  a  court  of  equity  would 
control  it  by  refusing  to  allow  the  portions  to  be  raised  if  the  children 
did  not  live  to  want  them.  The  rule  now  as  laid  down  by  the  Court  of 
Appeal  is,  tliat  where  a  donee  of  a  power  of  charging  portions  on  real 
estate  is  not,  under  the  terms  of  the  power,  restricted  as  to  the  times 
at  which  portions  shall  vest,  appoints  a  portion  to  vest  immediately, 
this  portion  can  be  raised  in  the  event  of  the  child  dying  under  twenty- 
one  and  unmarried,  unless  from  the  circumstances  of  the  case  it 
appears  that  the  appointment  was  a  fraud  on  the  power  (l). 

§  255&.  There  is  an  intermediate  class  of  appointments  which 
have  been  held  to  be  fraudulent,  where  the  donee  has  sought  to  attain 
a  particular  object  which  was  inadmissible  according  to  the  terms  or 
legal  effect  of  the  power  (m).  This  must  be  distinguished  from  the 
motive,  such  as  spite  or  ill-will,  which  induces  the  particular 
appointment  (n-). 

§  256.  In  the  next  place,  the  fraudulent  prevention  of  acts  to  he 
done  for  the  benefit  of  third  persons.    Courts  of  equity  hold  themselves 

(/)  McQueen  v.  Farquhar,  11  Ves.  479;  In  re  Perkins;  Perkins  v.  Bagot,  [1893] 
1  Ch.  283. 

(g)  In  re  Marsden's  Trust,  4  Drew,  594;  Whelan  v.  Palmer,  39  Ch.  D.  698. 

(h)  Harding  v.  Glyn,  1  Atk.  469;  Brown  v.  Higgs,  4  Ves.  708,  5  Ves.  495,  8  Ves. 
561;  In  re  Bradshaw ;  Bradshaw  v.  Bradshaw,  [1902]  1  Ch.  436. 

(i)  Kemp  v.  Kemp,  5  "Ves.  849;  Butcher  v.  Butcher,  1  Ves.  &  B.  79. 

(k)  In  re  Capon's  Trusts,  10  Ch.  D.  484;  In  re  Deakin;  Starkey  v.  Eyres,  [18941 
3  Ch.  565. 

(l)  Henty  v.  Wrey,  21  Ch.  D.  350. 

(m)  Duke  of  Portland  v.  Topham,  11  H.  L.  C.  32;  Topham  v.  Duke  of  Portland 
L.  E.  6  Ch.  40. 

(n)  Vane  v.  Lord  Dungannon,  1  Soh.  &  L.  118;  Campbell  v.  Home,  1  Y  &  C  Ch 
664. 


§  255a — 257a.]  actual  fraud.  107 

entirely  competent  to  take  from  third  persons,  and  a  fortiori,  from 
the  party  himself,  the  benefit  which  may  be  derived  from  his 
fraud,  imposition,  or  undue  influence,  in  procuring  the  suppression 
of  such  acts  (o).  Thus,  where  a  person  had  fraudulently  prevented 
another,  upon  his  death-bed,  from  suffering  a  recovery  at  law,  with  a 
view  that  the  estate  might  devolve  upon  another  person,  with  whom 
he  was  connected ;  it  was  adjudged,  that  the  estate  ought  to  be  held 
as  if  the  recovery  had  been  perfected,  and  that  it  was  against  conscience 
to  suffer  it  to  remain  where  it  was  (p).  So,  if  a  testator  should 
communicate  his  intention  to  a  devisee  of  charging  a  lega-cy  on  his 
estate,  and  the  devisee  should  tell  him  that  it  is  unnecessary,  and  he 
will  pay  it,  the  legacy  being  thus  prevented,  the  devisee  will  be 
charged  with  the  payment  (g).  And  instances  might  be  multiplied 
indefinitely  (r). 

§  257.  We  may  close  this  head  of  positive  or  actual  fraud,  by 
referring  to  another  class  of  frauds,  of  a  very  peculiar  and  distinct 
character.  Gifts  and  legacies  are  often  bestowed  upon  persons,  upon 
condition  that  they  shall  not  marry  without  the  consent  of  parents, 
guardians,  or  other  confidential  persons.  And  the  question  has  some- 
times occurred,  how  far  courts  of  equity  can  or  ought  to  interfere, 
where  such  consent  is  fraudulently  withheld  by  the  proper  party, 
for  the  express  purpose  of  defeating  the  gift  or  legacy,  or  of  insisting 
upon  some  private  and  selfish  advantage,  or  from  motives  of  a  corrupt, 
unreasonable,  or  vicious  nature.  It  has  been  said  that  courts  of  equity 
will  not  suffer  the  manifest  object  of  the  condition  to  be  defeated  by 
the  fraud  or  dishonest,  corrupt,  or  unreasonable  refusal  of  the  party 
whose  consent  is  required  to  the  marriage  (s).  It  is,  indeed,  a  very 
delicate  and  difiicult  duty  to  be  performed  by  such  courts.  Where 
the  court  has  condescended  to  illustrate  the  generality  of  its  statement 
of  principle,  it  appears  that  the  eases  contemplated  are  those  in  which 
there  has  been  a  clear  case  of  over-reaching.  It  must  be  remembered 
that  the  court  attaches  far  more  weight  to  the  necessity  of  consent 
than  to  the  strict  performance  of  the  conditions  regarding  its 
manifestation  (f). 

§  257a.  In  general,  a  contract  which  contemplates  a  fraud  upon 
third  parties  is  regarded  as  so  far  illegal  between  the  immediate  parties, 
that  neither  will  be  entitled  to  claim  the  aid  of  a  court,  of  equity  in  its 
enforcement  (m). 

(o)  Bridgman  v.  Green,  2  Ves.  Sen.  627 ;  Huguenin  v.  Baseley,  14  Ves.  289. 

(p)  Luttrell  v.  Lord  Waltham,  cited  14  Ves.  290;  s.c.  11  Ves.  638. 

(q)  Barrow  v.  Greenough,  3  Ves.  152. 

(r)  See  cases  in  note  (a)  to  3  Ves.  39. 

(s)  Eastland  v.  Reynolds,  1  Dick.  317;  Goldsmid  v.  Goldsmid,  19  Ves,  368;  Clarke 
V.  Parker,  19  Ves.  1. 

(i)  Blaekwell  v.  Wood,  1  L.  J.  N.  S.  Ch.  35;  Chapman  v.  Perkins,  [1905]  A.  C. 
106. 

(it)  Odessa  Tramways  Co.  v.  Mendel,  8  Ch.  D.  235;  Post  v.  Marsh,  16  Ch.  D.  395. 


108  CONSTRUCTIVE    FRAUD.  [CH.    VII. 


CHAPTER    VII. 


CONSTRUCTIVE    FRAUD. 


§  258.  Having  thus  considered  some  of  the  most  important  cases  of 
actual  or  meditated  and  intentional  fraud,  in  which  courts  of  equity 
are  accustomed  to  administer  a  plenary  jurisdiction  for  relief,  we  may 
now  pass  to  another  class  of  frauds,  which,  as  contradistinguished 
from  the  former,  are  treated  as  legal  or  constructive  frauds.  By 
constructive  frauds  are  meant  such  acts  or  contracts  as,  although  not 
originating  in  any  actual  evil  design  or  contrivance  to  perpetrate  a 
positive  fraud  or  injury  upon  other  persons,  are  yet,  by  their  tendency 
to  deceive  or  mislead  other  persons,  or  to  violate  private  or  public 
confidence,  or  to  impair  or  injure  the  public  interests,  deemed  equally 
reprehensible  with  positive  fraud,  and,  therefore,  are  prohibited  by 
law,  as  within  the  same  reason  and  mischief,  as  acts  and  contracts, 
done  malo  animo.  Although,  at  first  view,  the  doctrines  on  this 
subject  may  seem  to  be  of  an  artificial,  if  not  of  an  arbitrary,  character, 
yet,  upon  closer  observation,  they  will  be  perceived  to  be  founded  in  an 
anxious  desire  of  the  law  to  apply  the  principle  of  preventive  justice, 
so  as  to  shut  out  the  inducements  to  perpetrate  a  wrong,  rather  than 
to  rely  on  mere  remedial  justice  after  a  wrong  has  been  committed. 
By  disarming  the  parties  of  all  legal  sanction  and  protection  for  their 
acts,  they  suppress  the  temptations  and  encouragements,  which  might 
otherwise  be  found  too  strong  for  their  virtue. 

§  259.  Some  of  the  cases  under  this  head  are  principally  so 
treated,  because  they  are  contrary  to  some  general  public  policy,  or 
to  some  fixed  artificial  policy  of  the  law.  Others,  again,  rather  grow 
out  of  some  special  confidential  or  fiduciary  relation  between  all  the 
parties,  or  between  some  of  them,  which  is  watched  with  especial 
jealousy  and  solicitude,  because  it  affords  the  power  and  the  means 
of  taking  undue  advantage,  or  of  exercising  undue  influence  over 
others.  And  others,  again,  are  of  a  mixed  character,  combining,  in 
some  degree,  the  ingredients  of  the  preceding  with  others  of  a 
peculiar  nature;  but  they  are  chiefly  prohibited,  because  they  operate 
substantially  as  a  fraud  upon  the  private  rights,  interests,  duties,  or 
intentions  of  third  persons,  or  unconscientiously  compromit.  or 
injuriously  affect,  the  private  interests,  right,  or  duties  of  the  parties 
themselves. 

§  260.  And,  in  the  first  place,  let  us  consider  the  cases  of  con- 
structive fraud,  which  are  so  denominated  on  account  of  their  being 


§    258 — 265.]  CONSTRUCTIVE   FRAUD.  109 

contrary  to  some  general  public  policy,  or  fixed  artificial  policy  of  the 
law  (a).  Among  these  may  properly  be  placed  contracts  and  agreement^ 
respecting  marriage  (commonly  called '  marriage  brokage  contracts), 
by  which  a  party  engages  to  give  another  a  compensation  if  he  will 
negotiate  an  advantageous  marriage  for  him  (b).  The  civil  law  does  not 
seem  to  have  held  contracts  of  this  sort  in  such  severe  rebuke ;  for  it 
allowed  -proxenetae,  or  matchmakers,  to  receive  a  reward  for  their 
services,  to  a  limited  extent  (c)., 

§  261.  In  this  and  the  succeeding  para-graph  the  learned  author 
discussed  various  mischiefs  which  decisions  in  the  House  of  Lords  had 
prevented,  and  which  it  is  no  longer  necessary  to  consider  as  being  of 
practical  importance  after  the  lapse  of  two  centuries. 

5  263.  Be  the  foundation  of  the  doctrine,  however,  what  it  may, 
it  is  now  firmly  established  that  all  such  marriage  brokage  contracts 
are  utterly  void,  as  against  public  policy ;  so  much  so  that  they  are 
deemed  incapable  of  confirmation;  and  even  money  paid  under  them 
may  be  recovered  back  again  {d).  Nor  will  it  make  any  difference  that- 
the  marriage  is  between  persons  of  equal  rank  and  fortune  and  age, 
for  the  contract  is  equally  open  to  objection  upon  general  principles  ass 
being  of  dangerous  consequence. 

§  264.  The  doctrine  has  gone  even  farther,  and,  with  a  view  to 
suppress  all  undue  influence  and  improper  management,  it  has  been 
held  that  a  bond,  given  to  the  obligee  as  a  remuneration  for  having 
assisted  the  obligor  in  an  elopement  and  marriage  without  the  consent- 
of  friends,  is  void,  even  though  it  is  given  voluntarily  after  the  marriage, 
and  without  any  previous  agreement  for  the  purpose ;  for  it  may  operate 
an  injury  to  the  wife,  as  well  as  give  encouragement  to  a  grossly- 
iniquitous  transaction,  calculated  to  disturb  the  peace  of  families,  and 
to  involve  them  in  irremediable  distress  (e).  It  approaches,  indeed, 
very  nearly  to  the  case  of  a  premium  in  favour  of  seduction. 

§  265.  Of  a  kindred  nature,  and  governed  by  the  same  rules,  are 
cases  where  bonds  are  given,  or  other  agreements  made,  as  a  reward 
for  using  influence  and  power  over  another  person,  to  induce  him  to- 
make  a  will  in  favour  of  the  obligor  and  for  his  benefit;  for  all  such 
contracts  tend  to  the  deceit  and  injury  of  third  persons,  and  encourage 
artifices  and  improper  attempts  to  control  the  exercise  of  their  free 
judgment  (/).     But  such  cases  are  carefully  to  be  distinguished  from 

(o)  See  Mr.  Cox's  note  to  Osmond  v.  Fitzroy,  3  P.  Will.  131.  By  being  contrary 
to  public  policy  we  are  to  understand  that,  in  the  sense  of  the  law,  they  are  injurious 
to,  or  subversive  of,  the  public  interests.  See  Chesterfield  v.  Janssen,  1  Atk.  352;  s.c„ 
2  Ves.  Sen.  125. 

(b)  Scribblehill  v.  Brett,  4  Bro.  P.  C.  144;  Hermann  v.  Charlesworth,  [1905]: 
2  K.  B.  123. 

(c)  Cod.  Lib.  5,  tit.  1,  1.  6. 

(d)  Hermann  v.  Charlesworth,  [1905]  2  K.  B.  123. 

(e)  Williamson  v.  Oihon,  2  Sch.  &  Lefr.  356,  362. 
(/)  Debenham  v.  Ox,  1  Ves.  Sen.  276. 


110  EQUITY   JURISPRUDENCE.  [CH. 


VII. 


those  in  which  there  is  an  agreement  among  heirs  or  other  near 
relatives  to  share  the  estate  equally  between  them,  whatever  may  be 
the  will  made  by  the  testator ;  for  such  an  agreement  is  generally  made 
to  suppress  fraud  and  undue  influence,  and  cannot  truly  be  said  to 
disappoint  the  testator's  intention,  if  he  does  not  impose  any  restriction 
upon  his  devisee  (g). 

§  266.  Upon  a  similar  ground,  secret  contracts  made  with  parents 
or  guardians,  or  other  persons  standing  in  a  peculiar  relation  to  the 
party,  whereby,  upon  a  treaty  of  marriage,  they  are  to  receive  a  com- 
pensation, or  security,  or  benefit,  for  promoting  the  marriage,  or 
giving  their  consent  to  it,  are  held  void.  They  are  in  effect  equivalent 
to  contracts  of  bargain  and  sale  of  children  and  other  relatives,  and 
of  the  same  public  mischievous  tendency  as  marriage  brokage  con- 
tracts (h).  They  are  underhand  agreements,  subversive  of  the  due 
rights  of  the  parties,  and  operating  as  a  fraud  upon  those  to  whom 
they  are  unknown,  and  yet  whose  interests  are  controlled  or  sacrificed 
by  them.  And  as  marriages  are  of  public  concern  and  ought  to  be 
encouraged,  so  nothing  can  more  promote  this  end  than  open  and 
public  agreements  on  marriage  treaties,  and  the  discountenance  of  all 
others  which  secretly  impair  them  (i). 

§  267.  Thus,  where  a  bond  was  taken  by  a  father  from  his  son 
upon  his  marriage,  it  was  held  void,  as  being  obtained  by  undue 
influence  or  undue  parental  awe  (k).  So,  where  a  party  upon  his 
marriage  with  the  daughter  of  A.  gave  the  latter  a  bond  for  a  sum  of 
money  (in  effect  a  part  of  his  wife's  portion  on  the  marriage),  in  order 
io  obtain  his  consent  to  the  marriage,  it  was  held  utterly  void  Q).  So, 
where,  upon  a  marriage,  a  settlement  was  agreed  to  be  made  of 
certain  property  by  relations  on  each  side,  and,  after  the  marriage, 
one  of  the  parties  procured  an  underhand  agreement  from  the  husband 
to  defeat  the  settlement  in  part,  it  was  set  aside,  and  the  original 
settlement  carried  into  full  effect  (m).  In  all  these  and  the  like  cases 
courts  of  equity  proceed  upon  the  broad  and  general  ground  that  that 
which  is  the  open  and  public  treaty  and  agreement  upon  marriage 
shall  not  be  lessened  or  in  any  way  infringed  by  any  private  treaty  or 
agreement  {n).  The  latter  is  a  meditated  fraud  upon  innocent  parties, 
and  upon  this  account  properly  held  invalid.  But  it  has  a  higher 
foundation  in  the  security  which  it  is  designed  to  throw  round   the 

(g)  Harwood  v.  Tooke,  2  Sim.  192;  Wethered  v.  Wethered,  2  Sim.  183. 

(h)  Keate  v.  Allen,  2  Vern.  588;  s.c.  Free.  Ch.  267. 

(t)  Roberts  v.  Roberts,  3  P.  Will.  74,  and  Mr.  Cox's  note  (1);  Cole  v.  Gibson, 
1  Ves.  Sen.  503. 

(k)  Williamson  v.  Gihon,  2  Sch.  &  Lefr.  362. 

(I)  Keate  v.  Allen,  2  "Vern.  588;  Turton  v.  Benson,  Preo.  Ch.  522. 

(m)  Payton  v.  Bladwell,  1  Vern.  240;  Stribblehill  v.  Brett,  2  Vern.  445,.  Prec. 
€h.  165. 

(n>  1  Eq.  Cas.  Abr.  90,  P.  5,  6. 


§  266 271.]  CONSTRUCTIVE  FRAUD.  Ill 

contract  of  marriage,  by  placing  all  parties  upon  the  basis  of  good 
faith,  mutual  confidence,  and  equality  of  condition  (o). 

§  268.  The  same  principle  pervades  the  class  of  cases  where 
persons,  upon  a  treaty  of  marriage,  by  any  concealment  or  misrepre- 
sentation, mislead  other  parties,  or  do  acts  which  are  by  other  secret 
agreements  reduced  to  mere  forms  or  become  inoperative.  In  all 
cases  of  such  agreements  relief  will,  upon  the  same  enlightened 
public  policy,  be  granted  to  the  injured  parties.  For  equity  insists 
upon  principles  of  the  purest  good  faith,  and  nothing  could  be  more 
subversive  of  it  than  to  allow  parties,  by  holding  out  false  colours,  to 
escape  from  their  own  solemn  engagements  (p). 

§  269.  Thus,  where  a  parent  declined  to  consent  to  a  marriage 
with  the  intended  husband,  on  account  of  his  being  in  debt,  and  the 
brother  of  the  latter  gave  a  bond  for  the  debt  to  procure  such  consent ; 
and  the  intended  husband  then  gave  a  secret  counter-bond  to  his 
brother  to  indemnify  him  against  the  first,  and  the  marriage  proceeded 
upon  the  faith  of  the  extinguishment  of  the  debt,  the  counter-bond 
so  given  was  treated  as  a  fraud  upon  the  marriage  {conira  fidem 
tabularum  nuptialium),  and  all  parties  were  held  entitled  as  if  it 
had  not  been  given  (pp). 

§  270.  So,  where  the  parent,  upon  a  marriage  of  his  son,  made  a 
settlement  of  an  annuity  or  rent-charge  upon  the  wife  in  full  of  her 
jointure,  and  the  son  secretly  gave  a  bond  of  indemnity,  of  the  same 
date,  to  his  parent  against  the  annuity  or  rent-charge,  it  was  held 
void,  as  a  fraud  upon  the  faith  of  the  marriage  contract;  for  it 
affected  to  put  the  female  party  contracting  for  marriage  in  one 
situation  by  the  articles,  and,  in  fact,  put  her  in  another  and 
worse  situation  by  a  private  agreement  [q).  So,  where  a  brother,  on 
the  marriage  of  his  sister,  let  her  have  a  sum  of  money  privately, 
that  her  fortune  might  appear  to  be  as  much  as  was  insisted  on  by 
the  other  side,  and  the  sister  gave  a  bond  to  the  brother  to  repay  it, 
the  bond  was  set  aside  (?•). 

§  271.  And  where,  upon  a  treaty  of  marriage,  a  party  to  whom 
the  intended  husband  was  indebted  concealed  his  own  debt,  and  mis- 
represented to  the  wife's  father  the  amount  of  the  husband's  debts, 
the  transaction  was  treated  as  a  fraud  upon  the  marriage,  and  the 
creditor  was  prevented  by  injunction  from  enforcing  his  debt,  although 
it  did  not  appear  that  there  was  any  actual  stipulation  on  the  part  of 
the  wife's  father  in  respect  to  the  amount  of  the  husband's  debts  (s). 
Upon  this  occasion  Lord  Chancellor  Thurlow  said:    "The  principle 

(o)  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543,  547. 

(p)  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543. 

ipp)  Redman  v.  Redman,  1  Vern.  348. 

[q)  Palmer  v.  Neave,  11  Vea.  165. 

(r)  Gale  v.  Lindo,  2  Vern.  476 ;  Lamlee  v.  Hanman,  2  Vern.  499. 

(s)  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543. 


112  EQUITY   JURISPRUDENCE.  [CH     VII. 

on  which  all  these  cases  have  been  decided  is,  that  faith  in  such 
contracts  is  so  essential  to  the  happiness  both  of  the  parents  and 
children,  that  whoever  treats  fraudulently  on  such  an  occasion  shall 
not  only  not  gain,  but  even  lose  by  it.  Nay,  he  shall  be  obliged  to 
make  his  representation  good,  and  the  parties  shall  be  placed  in  the 
same  situation  as  if  he  had  been  scrupulously  exact  in  the 
performance  of  his  duty." 

§  272.  In  all  these  cases,  and  those  of  a  like  nature,  the  distinct 
ground  of  relief  is  a  meditated  fraud  or  imposition  practised  by  one 
of  the  parties  upon  third  persons  by  intentional  concealment  or  mis- 
representation. And,  therefore,  if  the  parties  act  under  a  mutual 
innocent  mistake,  and  with  entire  good  faith,  the  concealment  or 
misrepresentation  of  a  material  fact  will  not  induce  the  court  to 
compel  the  party  concealing  it  or  affirming  it  to  make  it  good,  or  to 
place  the  other  party  in  the  same  situation  as  if  the  fact  were  as  the 
latter  supposed.  There  must  be  some  ingredient  of  fraud,  or  some 
wilful  misstatement  or  concealment,  which  has  misled  the  other  side. 

§  273.  Upon  a  similar  ground  a  settlement,  secretly  made  by  a 
woman  in  contemplation  of  marriage,  of  her  own  property  to  her  own 
separate  use  without  her  intended  husband's  privity,  was  held  to  be 
void,  as  being  in  derogation  of  the  marital  rights  of  the  husband,  and 
a  fraud  upon  his  just  expectations  (t).  But  it  would  seem  that  the 
effect  of  the  Married  Women's  Property  Act,  1882,  and  of  the  amending 
statute  of  1907,  has  been  to  abolish  the  whole  doctrine  of  fraud  on 
marit^al  rights. 

§  274.  It  is  upon  the  same  ground  of  public  policy  that  contracts 
in  restraint  of  marriage  are  held  void  (u).  A  reciprocal  engagement 
between  a  man  and  a  woman  to  marry  each  other  is  unquestionably 
good  (x).  But  a  contract  which  restrains  a  person  from  marrying  at 
all,  or  from  marrying  anybody,  except  a  particular  person,  without 
enforcing  a  corresponding  reciprocal  obligation  on  that  person,  is 
treated  as  mischievous  to  the  general  interests  of  society,  which  are 
promoted  by  the  encouragement  and  support  of  suitable  marriages  (y). 
Courts  of  equity  have  in  this  respect  followed,  although  not  to  an 
unlimited  extent,  the  doctrine  of  the  civil  law,  that  marriage  ought 
to  be  free  (a). 

§  275.  Where,  indeed,  the  obligation  to  marry  is  reciprocal, 
although  the  marriage  is  to  be  deferred  to  some  future  period,  there 
may  not  be,  as  between  the  parties,  any  objection  to  the  contract  in 
itself,  if  in  all  other  respects  it  is  entered  into  in  good  faith,  and  there 


(t)  Countess  of  Strathmore  v.  Bowes,  1  Ves.  Jun.  22;  affd.  nom.  Bowes  v.  Bowes, 
§  Bro.  P.  C.  427;  England  v.  Downs,  2  Beav.  522. 
(u)  Hartley  v.  Rice,  10  East  22. 

(x)  Cook  v.  Baker,  1  Stra.  34;  Cock  v.  Richards,  10  Ves.  438. 
iy)  Lowe  v.  Peers,  4  Burr.  2225;  Cock  v.  Richards,  10  Ves.  429. 
(z)  Dig.  Lib.  35,  tit.  1,  ff  62,  63,  64;  Key  v.  Bradshaw,  2  Vem.  102. 


§  272 — 276.]  CONSTRUCTIVE  FRAUD.  113 

is  no  reason  to  suspect  fraud,  imposition,  or  undue  influence  (a).  But, 
even  in  these  cases,  if  the  contract  is  designed  by  the  parties  to 
impose  upon  third  persons,  as  upon  parents,  or  friends  standing  in 
loco  parentis,  or  in  some  other  particular  relation  to  the  parties,  so  as 
to  disappoint  their  bounty,  or  to  defeat  their  intentions  in  the  settle- 
ment or  disposal  of  their  estates;  there,  if  the  contract  is  clandestine, 
and  kept  secret  for  this  purpose,  it  will  be  treated  by  courts  of  equity 
as  a  fraud  upon  such  parents  or  other  friends,  and  as  such  be  set 
aside ;  or  the  equities  will  be  held  the  same  as  if  it  had  not  been 
entered  into  (b).  The  general  ground  upon  which  this  doctrine  is 
sustained  is  that  parents  and  other  friends,  standing  in.  loco  parentis, 
are  thereby  induced  to  act  differently  in  relation  to  the  advancement 
of  their  children  and  relatives  from  what  they  would  if  the  facts  were 
known;  and  the  best  influence  which  might  be  exerted  in  persuading 
their  children  and  relatives  to  withdraw  from  an  unsuitable  match  is 
entirely  taken  away.  To  give  effect  to  such  contracts  would  be  an 
encouragement  to  persons  to  lie  upon  the  watch  to  procure  unequal 
matches  against  the  consent  of  parents  and  friends,  and  to  draw  on 
improvident  and  clandestine  marriages,  to  the  destruction  of  family 
confidence,  and  the  disobedience  of  parental  authority  (c).  These  are 
objects  of  so  great  importance  to  the  best  interests  of  society  that 
they  can  scarcely  be  too  deeply  fixed  in  the  public  policy  of  a  nation, 
and  especially  of  a  Christian  nation. 

§  276.  In  the  civil  law  a  strong  desire  was  manifested  to  aid  in 
the  establishment  of  marriages,  as  has  been  already  intimated  (d). 
And  hence,  all  conditions  annexed  to  gifts,  legacies,  and  other  valuable 
interests,  which  went  to  restrain  marriages  generally,  were  deemed 
inconsistent  with  public  policy,  and  held  void.  A  gift,  therefore,  to 
a  woman,  of  land,  if  she  should  not  marry,  was  held  an  absolute  gift. 
' '  Maeviae,  si  non  nupserit,  fundum  quum  morietur,  lego ;  potest  dici, 
et  si  nupserit,  earn  confestim  ad  legatum  admitti  (e).  Si  testator 
rogasset  hseredem,  ut  restituat  haereditatem  mulieri,  si  non  nupsisset; 
dicendum  erit  compellendum  hseredem,  si  suspectam  dicat  haeredita- 
tem, adire  et  restituere  eam  mulieri,  etiam  si  nupsisset"  (/).  So,  a 
gift  to  a  father,  if  his  daughter,  who  is  under  his  authority  {in 
potestate),  should  not  marry,  was  treated  as  an  absolute  gift;  the 
condition  being  held  void  (g).  The  avowed  ground  of  these  decisions 
was,  that  all  such  conditions  were  a  fraud  upon  the  law  which  favoured 

(a)  Lowe  v.  Peers,  i  Burr.  2229,  2230;  Key,  v.  Bradshaw,  2  Vern.  102;  Frost  v. 
Knight,  L.  E.  7  Ex.  111. 

(b)  Cock  v.  Richards,  10  Vea.  429. 

(c)  Woodhouse  v.  Shepley,  2  Atk.  539;  Cock  v.  Richards,  10  Ves.  438,  539. 

(d)  Ante,  §  260. 

(e)  Pothier,  Pand.  Lib.  35,  tit.  1,  n.  83;  Dig.  Lib.  35,  tit.  1,  f.  72,  §  5. 
(/)  Pothier,  Pand.  Lib.  35,  tit.  1,  n.  33;  Dig.  Lib.  36,  tit.  1,  f.  65,  §  1. 
ig)  Pothier,  Pand.  Lib.  35,  tit.  1,  n.  36. 

E.J.  8 


114  EQUITY   JURISPRUDENCE.  [CH. 


VII. 


marriage;  "  Quod  in  fraudem  legis  ad  impediendas  nuptias  scripfcum 
est,  nuUam  vim  habet  "  (h). 

§  277.  But  a  distinction  was  taken  in  the  civil  law  between  such 
general  restraints  of  marriage,  and  a  special  restraint,  as  to  marrying 
or  not  marrying  a  particular  person;  the  latter  being  deemed  not 
unjustifiable.  Thus,  a  gift,  upon  condition  that  a  woman  should  not 
marry  Titius,  or  not  marry  Titius,  Seius,  or  Msevius,  was  held  valid  (i). 
And  the  distinction  was  in  some  cases  even  more  refined;  for,  if  a 
legacy  was  given  to  a  wife  upon  condition  that  she  should  not  marry 
while  she  had  children  {si  a  liberis,  ne  nupserit),  the  condition  was 
nugatory;  but,  if  it  was  that  she  should  not  marry  while  she  had 
children  in  puberty  {si  a  liberis  impuberibns  ne  nupserit),  it  was 
good  (fe).  And  the  reason  given  is  that  the  care  of  children,  rather  than 
widowhood,  might  be  enjoyed;  "  Quia  magis  cura  liberorum,  quam 
viduitas,  injungeretur  "  (I). 

§  278.  Courts  of  equity,  in  acting  upon  cases  of  a  similar  nature, 
have  been  in  no  small  degree  influenced  by  these  doctrines  of  the 
civil  law.  But  it  has  been  doubted  whether  the  same  grounds  upon 
which  the  Roman  law  acted  can  or  ought  to  be  acted  on  in  a  Christian 
country,  under  the  common  law.  Lord  Eosslyn  has  endeavoured  to 
account  for  the  introduction  of  these  doctrines  into  English  courts 
of  equity  from  the  desire  of  the  latter  to  adopt,  upon  legatory 
questions,  the  rules  of  the  ecclesiastical  courts,  which  were  borrowed 
directly  from  the  civil  law.  And  speaking  upon  the  subject  of  the 
rule  of  the  civil  law,  as  to  conditions  in  restraint  of  marriage,  he 
said  (m) :  ' '  How  it  should  ever  have  come  to  be  a  rule  of  decision  in 
the  ecclesiastical  court  is  impossible  to  be  accounted  for,  but  upon 
this  circumstance,  that,  in  the  unenlightened  ages,  soon  after  the 
revival  of  letters,  there  was  la  blind  superstitious  adherence  to  the  text 
of  the  civil  law.  They  never  reasoned ;  but  only  looked  into  the  books 
and  transferred  the  rules  without  weighing  the  circumstances,  as 
positive  rules  to  guide  them.  It  is  beyond  imagination,  except  from 
that  circumstance,  how,  in  a  Christian  country,  they  should  have 
adopted  the  rule  of  the  Eoman  law  with  regard  to  conditions  as  to 
marriage.  First,  where  there  is  an  absolute,  unlimited  liberty  of 
divorce,  all  rules  as  to  marriage  are  inapplicable  to  a  system  of  religion 
and  law,  where  divorce  is  not  permitted.  Next,  the  favour  to  marriage, 
and  the  objection  to  the  restraint  of  it,  were  a  mere  political  regulation, 
applicable  to  the  circumstances  of  the  Eoman  empire  at  that  time, 
and  inapplicable  to  other  countries.  After  the  civil  war,  the  depopu- 
lation  occasioned  by  it  led   to  habits  of   celibacy.      In   the   time   of 

ik)  Ibid.  Lib.  35,  tit.  1,  n.  35;  Dig.  Lib.  35,  tit.  1,  f.  79,  §  4. 

(i)  Pothier,  Pand.  Lib.  35,  tit.  1,  n.  34;  Dig.  Lib.  35,  tit.  1,  f.  63,  64. 

(fc)  Pothier,  Pand.  Lib.  35,  tit.  1,  n.  34;  Dig.  Lib.  35,  tit.  1,  f.  62,  §  2. 

(Z)  Pothier,  Pand.  Lib.  35,  tit.  1,  n.  34. 

(m)  Stackpole  \.  Beaumont,  3  Ves.  96. 


§  277 — 280.]  CONSTRUCTIVE  FRAUD.  115 

Augustus,  the  Julian  law,  which  went  too  far,  and  was  corrected  by 
the  Lex  Papia  Popq)xa,  not  only  offered  encouragement  to  marriage, 
but  laid  heavy  impositions  upon  celibacy.  That  being  established, 
as  a  rule  in  restraint  of  celibacy  (it  is  an  odd  expression),  and  for  the 
encouragement  of  all  persons  who  would  contract  marriage,  it  neces- 
sarily followed,  that  no  person  could  act  contrary  to  it  by  imposing 
restraints  directly  contrary  to  the  law.  Therefore,  it  became  a  rule 
of  construction,  that  these  conditions  were  null.  It  is  difficult  to 
apply  that  to  a  country  where  there  is  no  law  to  restrain  individuals 
from  exercising  their  own  discretion,  as  to  the  time  and  circumstances 
of  the  marriage  which  their  children,  or  objects  of  bounty,  may  con- 
tract. It  is  perfectly  impossible  now,  whatever  it  might  have  been 
formerly,  to  apply  that  doctrine,  not  to  lay  conditions  to  restrain 
marriage  under  the  age  of  twenty -one,  to  the  law  of  England;  for  it 
is  directly  contrary  to  the  political  law  of  the  country.  There  can  be 
no  marriage  under  tlie  age  of  twenty-one,  without  the  consent  of  the 
parent." 

§  279.  It  is  highly  probable  that  this  view  of  the  origin  of  the 
English  doctrine,  as  to  conditions  in  restraint  of  marriage,  annexed 
to  gifts,  legacies,  and  other  conveyances  of  interests,  is  historically 
correct.  But,  whether  it  be  so  or  not,  it  may  be  affirmed,  without 
fear  of  contradiction,  that  the  doctrine  on  this  subject,  at  present 
maintained  and  administered  by  courts  of  equity  (for  it  has  under- 
gone some  important  changes),  is  far  better  adapted  to  the  exigencies 
of  modern  society  throughout  Christendom,  than  that  which  was 
asserted  by  the  Eoman  law.  While  it  upholds  the  general  freedom 
of  choice  in  marriages,  it  at  the  same  time  has  a  strong  tendency  to 
preserve  a  just  control  and  influence  in  parents,  in  regard  to  the 
marriage  of  their  children,  and  a  reasonable  power  in  all  persons  to 
qualify  and  restrict  their  bounty  in  such  a  manner,  and  on  such 
conditions,  as  the  general  right  of  dominion  over  property  in  a  free 
country  justifies  and  protects,  upon  grounds  of  general  convenience 
and  safety. 

§  280.  The  general  result  of  the  modem  doctrine  on  this  subject 
(for  it  is  impossible  to  reconcile  all  the  cases)  may  be  stated  in  the 
following  summary  manner.  Conditions  annexed  to  gifts,  legacies, 
and  devises,  in  restraint  of  marriage,  are  not  void,  if  they  are  reason- 
able in  themselves,  and  do  not  directly  or  virtually  operate  as  an 
undue  restraint  upon  the  freedom  of  marriage  (n-).  If  the  condition 
is  in  restraint  of  marriage  generally,  then,  indeed,  as  a  condition 
against  public  policy,  and  the  due  economy  and  morality  of  domestic 
life,  it  will  be  held  utterly  void  (o).     And  so,  if  the  condition  is  not 

(n)  Scott  V.  Tyler,  2  Bro  C.  C.  487 ;  2  Dick.  718;  Stackpole  v.  Beaumont,  3  Ves. 
95. 

(o)  Morley  v.  Kennoldson,  2  Hare  570;  [1895]  1  Ch.  449. 


116  EQUITY    JURISPRUDENCE.  [CH.    VII. 

in  restraint  of  marriage  generally,  but  still  the  prohibition  is  of  so 
rigid  a  nature,  or  so  tied  up  to  peculiar  circumstances,  that  the  party 
upon  whom  it  is  to  operate  is  unreasonably  restrained  in  the  choice 
of  marriage,  it  will  fall  under  the  like  consideration  (p).  Thus, 
where  a  legacy  was  given  to  a  daughter,  on  condition  that  she  should 
not  marry  without  consent,  or  should  not  marry  a  man  who  was  not 
seised  of  an  estate  in  fee-simple  of  the  clear  yearly  value  of  £500,  it 
was  held  to  be  a  void  condition,  as  leading  to  a  probable  prohibition 
bi  marriage  (q). 

§  281.  But  the  same  principles  of  public  policy  which  annul  such 
conditions,  when  they  tend  to  a  general  restraint  of  marriage,  will 
confirm  and  support  them  when  they  merely  prescribe  such  reason- 
able and  provident  regulations  and  sanctions  as  tend  to  protect  the 
individual  from  those  melancholy  consequences  to  which  an  over- 
hasty,  rash,  or  precipitate  match  would  probably  lead.  If  parents, 
who  must  naturally  feel  the  deepest  solicitude  for  the  welfare  of  their 
children,  and  other  near  relatives  and  friends,  who  may  well  be 
presumed  to  take  a  lively  interest  in  the  happiness  of  those  with 
whom  they  are  associated  by  ties  of  kindred,  or  friendship,  could  not, 
by  imposing  some  restraints  upon  their  bounty,  guard  the  inexperience 
and  ardour  of  youth  against  the  wiles  and  delusions  of  the  crafty 
and  the  corrupt,  who  should  seek  to  betray  them  from  motives  of 
the  grossest  selfishness,  the  law  would  be  lamentably  defective,  and 
would,  under  the  pretence  of  upholding  the  institution  of  marriage, 
subvert  its  highest  purposes.  It  would,  indeed,  encourage  the  young 
and  the  thoughtless  to  exercise  a  perfect  freedom  of  choice  in  maxriage ; 
but  it  would  be  ati  the  expense  of  all  the  best  objects  of  the  institution, 
the  preservation  of  domestic  happiness,  the  security  of  private  virtue, 
and  the  rearing  of  families  in  habits  of  sound  morality,  and  filial 
obedience  and  reverence..  Such  a  reproach  does  not  belong  to  the 
common  law  in  our  day;  and,  least  of  all,  can  it  be  justly  attributed 
to  courts  of  equity. 

§  282.  Mr.  Fonblanque  has,  with  great  propriety,  remarked:  "  The 
only  restrictions  which  the  law  of  England  imposes,  are  such  as  are 
dictated  by  the  soundest  policy,  and  approved  by  the  purest  morality. 
That  a  parent,  professing  to  be  affectionate,  shall  not  be  unjust ;  that, 
professing  to  assert  his  own  claim,  he  shall  not  disappoint  or  control 
the  claims  of  nature,  nor  obstruct  the  interests  of  the  community; 
that  what  purports  to  be  an  act  of  generosity  shall  not  be  allowed  to 
operate  as  a  temptation  to  do  that  which  militates  against  nature, 
morality,  or  sound  policy,  or  to  restrain  from  doing  that  which  would 
serve  and  promote  the  essential  interests  of  society;  [these]  are  rules 
which    cannot    reasonably    be    reprobated    as   harsh    infringements    of 

(p)  Keily  v.  Movck,  3  Eidgw.  Pari.  205. 
iq)  Ibid. 


§  281 — 285.]  CONSTRUCTIVE  FRAUD.  117 

private  liberty,  or  even  reproached  as  unnecessary  restraints  on  its 
free  exercise.  On  these  considerations  are  founded  those  distinctions 
which  have  from  time  to  time  been  recognized  in  our  courts  of  equity, 
respecting  testamentary  conditions  with  reference  to  marriage  "  (?•). 

§  283.  Godolphin  also  has  very  correctly  laid  down  the  general 
principle.  "  All  conditions  against  the  liberty  of  marriage  are 
unlawful.  But,  if  the  conditions  are  only  such,  as  whereby  marriage 
is  not  absolutely  prohibited,  but  only  in  part  restrained,  as  in  respect 
to  time,  place,  or  person,  then  such  conditions  are  not  utterly  to  be 
rejected  "  (s).  Still,  this  language  is  to  be  understood  with  proper 
limitations;  that  is  to  say,  that  the  restraints  upon  marriage,  in 
respect  to  time,  place,  or  person,  are  reasonably  asserted.  For  it  is 
obvious  that  restraints  as  to  time,  place,  and  person  may  be  so  framed 
as  to  operate  a  virtual  prohibition  upon  marriage,  or,  at  least,  upon 
its  most  important  and  valuable  objects.  As,  for  instance,  a  condition 
that  a  child  should  not  marry  until  fifty  years  of  age ;  for  this  would 
be  deemed  a  mere  evasion  or  fraud  upon  the  law  (i). 

§  284.  On  the  other  hand,  some  provisions  against  improvident 
matches,  especially  during  infancy,  or  until  a  certain  age  of  discretion, 
cannot  be  deemed  an  unreasonable  precaution  for  parents  and  other 
persons  to  affix  to  their  bounty.  Thus  a  legacy  given  to  a  daughter 
to  be  paid  her  at  twenty-one  years  of  age,  if  she  does  not  marry  until 
that  period,  would  be  held  good,  for  it  postpones  marriage  only  to  a 
reasonable  age  of  discretion  (u).  So,  a  condition,  annexed  to  a  gift  or 
legacy,  that  the  party  should  not  marry  without  the  consent  of  parents 
or  trustees,  or  other  persons  specified,  is  held  good;  for  it  does  not 
impose  an  unreasonable  restraint  upon  marirage ;  and  it  must  be  pre- 
sumed that  the  person  selected  will  act  with  good  faith  and  sound 
discretion  in  giving  or  withholding  consent  (x).  The  civil  law,  indeed, 
seems,  on  this  point,  to  have  adopted  a  very  different  doctrine ;  holding 
that  the  requirement  of  the  consent  of  a  third  person,  and  especially 
of  an  interested  person,  is  a  mere  fraud  upon  the  law  (y). 

§  285.  Other  cases  have  been  stated,  which  are  governed  by  the 
same  principles.  Thus,  a  condition  restraining  marriage  with  a 
domestic  servant  is  not  in  general  restraint  of  marriage  (»).  So,  a  con- 
dition that  a  widow  or  widower  shall  not  re-marry,  is  not  unlawful, 
neither  is  an  annuity  during  widowhood  only  (a).    A  condition  to  marry, 

(r)  Fonbl.  Eq.  B.  1,  ch.  4,  §  10,  note  (g). 

(s)  Godolphin 's  Orphan's  Legacy,  Pt.  1,  ch.  15,  §  1. 

(t)  See  Scott  v,  Tyler,  2  Dick.  721,  722;  2  Bro.  C.  C.  488. 

(u)  Scott  V.  Tyler,  2  Bro.  C.  C.  431. 

(x)  Clarke  v.  Parker,  19  Ves.  1;  Lloyd  v.  Branton,  3  Mer.  108;  Chapman  v. 
Perkins,  [1905]  A.  C.  106. 

(y)  Lord  Thurlow,  in  Scott  v.  Tyler,  2  Dick.  728;  Ayliffe,  Pand.  B.  8,  tit.  21, 
p.  374. 

(z)  Jenner  v.  Turner,  16  Ch.  D.  188. 

(a)  Newton  v.  Marsden,  2  J.  &  H.  356 ;  Evans  v.  Rosser,  2  H.  &  M.  190 ;  Allen  y. 
Jackson,  1  Ch.  D.  399. 


118  EQUITY   JURISPRUDENCE.  [CH.    VII. 

or  not  to  marry,  Titius  or  Maevia,  is  good.  So  a  condition,  prescribing 
■due  ceremonies  and  a  due  place  of  marriage,  is  good.  And  so  any 
other  conditions  of  a  similar  nature,  if  not  used  evasively,  as  a  covert 
purpose  to  restrain  marriage  generally  (b).  And  on  the  same  general 
principle,  a  condition  that  the  legatee  shall  not  become  a  nun  is  valid ; 
and  although  the  will  contain  no  bequest  over,  the  legacy  is  forfeited 
if  the  legatee  does  become  a  nun  (c). 

§  286.  But  courts  of  equity  are  not  generally  inclined  to  lend  an 
indulgent  consideration  to  conditions  in  restraint  of  marriage  (d) ;  and 
on  that  account  (being  in  no  small  degree  influenced  by  the  doctrines 
of  the  civil  and  canon  law),  they  have  not  only  constantly  manifested 
an  anxious  desire  to  guard  against  any  abuse,  to  which  the  giving  of 
one  person  any  degree  of  control  over  another  might  eventually  lead ; 
but  they  have,  on  many  occasions,  resorted  to  subtleties  and  artificial 
distinctions,  in  order  to  escape  from  the  positive  directions  of  the 
party  imposing  such  conditions. 

§  287.  One  distinction  is,  between  cases  where,  in  default  of  a 
compliance  with  the  condition,  there  is  a  bequest  over,  and  cases 
where  there  is  not  a  bequest  over,  upon  a  like  default  of  the  party 
to  comply  with  the  condition.  In  the  former  case,  the  bequest  over 
becomes  operative  upon  such  default,  and  defeats  the  prior  legacy  (e). 
In  the  latter  case  (that  is,  where  there  is  no  bequest  over),  the  con- 
dition is  treated  as  ineffectual,  upon  the  ground  that  the  testator  is  to 
be  deemed  to  use  the  condition  in  teiTorem  only,  and  not  to  impose 
a  forfeiture,  since  he  has  failed  to  make  any  other  disposition  of  the 
bequest  upon  default  in  the  condition  (/).  There  is  an  intermediate 
class  which  had  not  been  discussed  in  any  decision  when  the  author 
wrote,  namely,  of  a  gift  terminating  on  marriage,  and  operating  by 
way  of  conditional  limitation.  Gifts  of  this  character  cease  upon 
marriage  (g). 

§  288,  In  the  case  of  conditions  in  restraint  of  marriage,  annexed 
to  a  devise  of  real  estate,  or  to  a  charge  on  real  est-ate,  or  to  things 
savouring  of  the  realty,  the  doctrine  of  the  common  law,  as  to  con- 
ditions, is  strictly  applied.  If  the  condition  be  precedent,  it  must  be 
strictly  complied  with,  in  order  to  entitle  the  party  to  the  benefit  of 

(b)  Scott  V.  Tyler  2  Bro.  C.  C.  488;  2  Dick.  721,  722;  HaugUon  v.  Haughton, 
1  Moll.  611. 

(c)  In  Te  Dickson,  1  Sim.  N.  S.  37. 

(d)  See  Long  v.  Dennis,  4  Burr,  2062.  Lord  Mansfield,  in  Long  v.  Dennis,  4 
Burr.  2055,  said,  "  Conditions  in  restraint  of  marriage  are  odious,  and  are,  therefore, 
held  to  the  utmost  rigour  and  strictness."  Lord  Eldon  seems  to  have  disapproved  of 
this  generality  of  expression,  in  Clarke  v.  Parker,  19  Ves.  19. 

(e)  In  re  Whiting's  Settlement;  Whiting  v.  De  Rutzen,  [1905]  1  Ch.  96.  Where 
the  condition  of  a  devise  was  the  giving  of  a  bond  not  to  marry  or  cohabit  -with  certain 
persons,  with  a  devise  over,  the  court  refused  to  enforce  the  condition,  as  tending  to 
inquiries  disturbing  the  peace  of  another  family.     Poole  v.  Boit,  11  Hare  33. 

(/)  Marples  v.  Bainbridge,  1  Mad.  590. 

((/)  Webb  V.  Grace,  2  Ph.  710;  Heath  v.  Lewis,  3  De  G.  M.  &  G.  954. 


§  286 291.]  CONSTRUCTIVE  FRAUD.  119 

the  devise  or  gift.  If  the  condition  be  subsequent,  its  validity  will 
depend  upon  its  being  such  as  the  law  will  allow  to  devest  an  estate. 
For,  if  the  law  deems  the  condition  void  as  against  its  own  policy, 
then  the  estate  will  be  absolute  and  free  from  the  condition.  If,  on 
the  other  hand,  the  condition  is  good,  then  a  non-compliance  with  it 
will  defeat  the  estate,  in  the  same  manner  as  any  other  condition 
subsequent  will  defeat  it  {h). 

§  289.  If  the  bequest  be  of  personal  estate,  and  the  condition  in 
restraint  of  marriage  be  subsequent  and  general  in  its  character,  it  is 
treated  as  the  like  condition  is  at  law,  in  regard  to  real  estate,  as  a 
mere  nullity,  and  the  legacy  becomes  pure  and  absolute  (;)■  If  it  be 
only  a  limited  restraint  (such  as  to  a  marriage  with  the  consent  of 
parents,  or  not  until  the  age  of  twenty-one),  and  there  is  no  bequest 
over  upon  default,  the  condition  subsequent  is  treated  as  merely  in 
terrorem,  and  the  legacy  becomes  pure  and  absolute  (k).  According 
to  the  more  recent  cases,  if  the  restraint  be  a  condition  precedent,  and 
be  in  general  restraint  of  marriage,  there,  although  it  is  void,  if  there 
is  not  a  compliance  with  it,  the  estate  will  never  arise  in  the 
legatee  (L). 

§  291.  But  there  is  a  modification  of  the  strictness  of  the  common 
law,  as  to  conditions  precedent  in  regard  to  personal  legacies,  which 
is  at  once  rational  and  convenient,  and  promotive  of  the  real  intention 
of  the  testator.  It  is,  that,  where  a  literal  compliance  with  the  con- 
dition becomes  impossible  from  unavoidable  circumstances,  and 
without  any  default  of  the  party,  it  is  sufficient  that  it  is  complied 
with,  as  nearly  as  it  practically  can  be,  or  (as  it  is  technically  called) 
cy-pres.  This  modification  is  derived  from  the  civil  law,  and  stands 
upon  the  presumption,  that  the  donor  could  not  intend  to  require 
impossibilities,  but  only  a  substantial  compliance  with  his  directions, 
as  far  as  they  should  admit  of  being  fairly  carried  into  execution  It 
is  upon  this  ground  that  courts  of  equity  constantly  hold,  in  cases  of 
personal  legacies,  that  a  substantial  compliance  with  the  condition 
satisfies  it,  although  not  literally  fulfilled.  Thus  if  a  legacy  upon  a 
condition  precedent  of  the  consent  of  the  testator  to  a  marriage,  and 
a  marriage  should  take  place  in  his  lifetime  without  his  disapproval  (w), 
or  should  require  the  consent  of  three  persons  to  a  marriage,  and  one 
or  more  of  them  should  die,  the  consent  of  the  survivor  or  survivors 
would  be   deemed  a  sufficient  compliance   with  condition   (n).     And 


(h)  Co.  Litt.  206  a  and  b;  id.  217  a;  id.  237,  Harg  &  Butler's  note  (152);  Harvey 
V.  Aston,  1  Atk.  361;  Lowe  v.  Peers,  i  Burr.  2225;  Long  v.  Ricketts,  2  Sim.  &  Stu. 
179. 

(j)  Morley  v.  Rennoldson,  2  Hare  570;  [1895]  1  Ch.  449. 

(k)  Lloyd  V.  Branton,  3  Meriv.  117;  Marples  v.  Bainbridge,  1  Mad.  590. 

(/)  Morgan  v.  Morgan,  4  De  G.  &  Sm.  164;  In  re  Brown's  Will,  18  Ch.  D.  61. 

(m)  Chapman  v.  Perkins,  [1905]  A.  C.  106. 

(n)  Clarke  v.  Parker,  19  Yes.  1;  Worthington  v.  Evans,  1  Sim.  &  Stu.  165. 


120  EQUITY   JURISPRUDENCE.  [CH.    VII. 

a    fortiori,    this    doctrine    would    be    applied    to    conditions    subse- 
quent (o). 

§  291.  The  topic  just  discussed,  although  widely  sundered  from 
what  we  should  now  regard  as  fraud,  suggests  conditions  annexed  to 
a  gift,  the  tendency  of  which  is  to  induce  husband  and  wife  to  live 
separate,  or  be  divorced,  and  these  upon  grounds  of  public  policy  and 
public  morals,  are  held  void  (p).  In  Wren  v.  Bradley  (q),  an  annuity 
was  bequeathed  to  a  daughter,  a  married  woman,  ' '  in  case  she  should 
be  living  apart  from  her  husband,  and  should  continue  to  do  so  " 
during  the  life  of  the  testator's  widow,  which  annuity  was  to  cease 
whenever  the  annuitant  should  cohabit  with  her  husband;  the  will 
also  contained  a  residuary  trust,  the  income  of  which  was  to  be  paid 
to  the  daughter,  during  such  time  as  she  should  continue  to  live 
apart  from  her  husband;  but  directed  that,  whenever  she  should 
cohabit  with  her  husband,  such  income  should  be  paid  to  other 
legatees ;  and  further  contained  a  trust  for  the  children  of  the  daughter, 
by  any  other  husband.  The  daughter  and  her  husband  were  living 
apart  at  the  date  of  the  will,  but  had  become  reconciled,  and  were 
living  together  at  the  death  of  the  testator  and  subsequently :  it  was 
held  that  the  daughter  was  entitled  to  the  benefit  of  all  the  provisions 
of  the  will  in  her  favour.  The  Vice-Chancellor,  Knight-Bruce,  said, 
in  giving  judgment:  "  It  is  impossible  to  read  the  will  without  per- 
ceiving that  the  testator's  wish  and.  object  were  to  obstruct  a 
reconciliation,  and  prevent  the  wife  from  living  with  her  husband. 
And  that,  by  that  wish,  by  that  object,  its  provisions  to  her  were 
influenced  and  directed.  The  weight  of  authority  and  the  principles 
of  the  civil  law,  as  far  as  I  consider  them  applicable,  seem  to  me  to 
render  a  decision  in  this  case,  in  the  daughter's  favour,  consistent  at 
once  with  technical  equity  and  moral  justice."  Here,  too,  common 
sense  prevails.  If  the  object  is  not  to  bring  about  a  separation,  but  to 
make  a  provision  for  a  spouse  pending  a  separation,  the  condition 
would  be  valid  (r). 

§  292.  Another  class  of  constructive  frauds,  and  so  deemed  because 
'inconsistent  with  the  general  poUcy  of  the  law,  is  that  of  bargains 
and  contracts  made  in  restraint  of  trade.  Formerly  contracts  in 
general  restraint  of  trade  were  held  to  be  ipso  facto  invalid,  but 
according  to  the  most  recent  decisions,  a  provision  appointing  a  world- 
wide restraint  upon  the  employment  of  personal  services  is  not  invalid, 
if  justified  by  the  circumstances,  to  determine  which  regard  must  be 
had  to  the  respective  interests  of  the  parties  to  the  contract,  and  of 

(o)  Aislabie  v.  i?!ce>3  Mad.  256. 

(p)  Marq.  of  Westmeath  v.  Marq.  of  Salisbv/ry,  5  Bli.  N.  S.  339;  CartwrigM  v. 
Cartwnght,  3  De  G.  M.  &  G.  982 ;  In  re  Moore,  Trafford  v.  Maconochie,  39  Ch.  D.  116. 

(g)   Wren  v.  Bradley,  2  De  G.  &  Sm.  49. 

(r)  Jones  v.  Waite,  5  Bing.  N.  C.  341;  9  CI.  &  P.  101;  In  re  Hope  Johnstone, 
[1904]  1  Ch.  470;  Harrison  v.  Harrison,  [1910]  1  K.  B.  35. 


■§    291—294,]  CONSTRUCTIVE   FRAUD.  121 

the  public  (s).     And  a  person  may  lawfully  sell  a  secret  in  his  trade 
or  business,  and  restrain  himself  from  using  that  secret  (t). 

§  293.  The  common  law  required  that  sales  by  auction  should  be 
conducted  upon  principles  of  free  competition.  Unless  the  seller  re- 
served a  right  to  bid,  he  could  not  run  up  the  price  by  himself  or  his 
agent,  commonly  called  a  puffer  (u) ;  and,  conversely,  a  prospective 
buyer  was  not  entitled  to  damp  the  sale  (x).  In  equity  the  converse  rule 
obtained  in  favour  of  seller  (?/)  or  buyer  (z).  But  by  the  "  Sale  of  Land 
by  Auction  Act,"  1867  (30  &  31  Vict.  c.  48),  it  is  enacted  that  all  sales 
of  land  where  a  pufier  has  bid  shall  be  void,  unless  a  right  of  bidding  on 
behalf  of  the  owner  shall  have  been  reserved,  and  that  the  conditions  of 
sale  shall  state  whether  the  sale  is  to  be  without  reserve  or  subject  to  a 
reserved  price,  or  whether  a  right  to  bid  is  reserved ;  that  if  it  be  stated 
that  the  sale  is  to  be  without  reserve,  a  puSer  is  not  to  be  employed ; 
that  if  a  right  of  bidding  be  reserved,  the  seller  or  one  puffer  may  bid. 
And  these  provisions  have  lately  been  extended  to  sales  of  goods  by 
auction  by  Section  58  of  the  Sale  of  Goods  Act,  1893. 

§  294.  In  like  manner,  agreements,  which  are  founded  upon  viola- 
tions of  public  trust  or  confidence,  or  of  the  rules  adopted  by  courts 
in  furtherance  of  the  adminstration  of  public  justice,  are  held  void. 
Thus,  an  assignment  of  the  full  or  half-pay  of  a  retired  officer  of  the 
army  or  other  public  officer  is  void ;  for  it  operates  as  a  fraud  upon  the 
public  bounty  (a).  So,  a  corrupt  bargain  by  a  member  of  the  legis- 
lature to  turn  his  position  to  pecuniary  account  would  be  invalid, 
although  there  would  be  no  objection  to  his  making  a  bargain  in  refer- 
ence to  his  property,  using  his  position  as  a  lever  to  obtain  favourable 
terms  (b).  Agreements,  founded  upon  the  suppression  of  criminal 
prosecutions,  fall  under  the  same  consideration.  They  have  a  manifest 
tendency  to  subvert  public  justice  (c).  So,  wager  contracts,  if  contrary 
to  sound  morals,  or  injurious  to  the  feelings  or  interests  of  third 
persons,  or  against  the  principles  of  public  policy  or  duty,  are  void  at 
the  common  law,  and  the  general  legality  of  wagers  at  the  common 
law  has  been  restricted  by  statute  (d).     So,  of  contracts  to  enable  a 

(s)  Nordenfeldt  v.  Maxim  Nordenfeldt  Guns  <{  Ammumtion  Co.,  [1894]  A.  C. 
535;  Mason  v.  Provident  Clothing  it  Supply  Co.,  [1913]  A.  C.  724;  Morris,  Lim.  v. 
Saxelby,  [1915]  A.  C.  688. 

(t)-  Bryson  v.  Whitehead,  1  Sim.  &  Stu.  74;  Hagg  v.  Darley,  47  L.  J.  Ch.  567. 

(a)  Howard  v.  Castle,  6  L.  E.  642;  Crowder  v.  Austin,  3  Bing.  368. 

(x)  Fuller  v.  Abrahams,  6  Moo.  316. 

(y)  Smith  v.  Clarke,  12  Ves.  477. 

(z)  In  re  Garew's  Estate,  26  Beav.  197;  Hejfer  v.  Martyn,  36  L.  J.  Ch.  372. 

(a)  Stone  v.  Littledale,  2  Anst.  533;  Davis  v.  Duhe  of  Marlborough,  1  Swanst.  74; 
Ex  parte  Hug  gins,  21  Ch.  D.  91. 

(b)  Simpson  v.  Lord  Howden,  3  M.  &  Cr.  97 ;  9  CI.  &  F.  61. 

(c)  Lound  V.  Grimwade,  39  Ch.  D.  605 ;  Windhill  hoc.  Bd.  v.  Vint,  45  Ch.  D. 
351;  Jrnies  v.  Merionette  Building  Soc,  [1892]  1  Ch.  173;  Consolidated  Exploration  d 
Finance  Co.  v.  Musgrave,  [1900]  1  Ch.  37. 

(d)  Ramloll  v.  Soojumnull,  6  Moo.  P.  C.  300;  Read  v.  Anderson,  10  Q.  B.  D.  100. 


122  EQUITY   JURISPKUDENCE.  [CH.    VII. 

person  to  violate  the  licence  laws  (e).     So  are  contracts  which  have  a 
tendency  to  encourage  champerty  (/). 

§  295.  Another  extensive  class  of  cases,  falling  under  this  head  of 
constructive  fraud,  respects  contracts  for  the  buying,  selling,  or  pro- 
curing of  public  offices.  It  is  obvious  that  all  such  contracts  must 
have  a  material  influence  to  diminish  the  respectability,  responsibility, 
and  purity  of  public  officers,  and  to  introduce  a  system  of  official 
patronage,  corruption,  and  deceit  wholly  at  war  with  the  public 
interests.  The  confidence  of  officers  may  thereby  not  only  be  abused 
and  perverted  to  the  worst  purposes,  but  mischievous  arrangements 
may  be  made  to  the  injury  of  the  public;  and  persons  may  be  intro- 
duced or  kept  in  office  who  are  utterly  unqualified  to  discharge  the 
proper  functions  of  their  stations.  Such  contracts  are  justly  deemed 
contracts  of  moral  turpitude ;  and  are  calculated  to  betray  the  public 
interests  into  the  administration  of  the  weak,  the  profligate,  the  selfish, 
and  the  cunning.  They  are,  therefore,  held  utterly  void,  as  contrary 
to  the  soundest  public  policy,  and,  indeed,  as  a  constructive  fraud  upoil 
the  government  (g).  It  is  acting  against  the  spirit  of  the  constitution 
of  a  free  government,  by  which  it  ought  to  be  served  by  fit  and  able 
persons,  recommended  by  the  proper  officers  of  the  government  for  their 
abilities,  and  from  motives  of  disinterested  purity  (h).  It  has  been 
strongly  remarked  that  there  is  no  rule  better  established  (it  should 
be  added,  in  law  and  reason,  for,  unfortunately,  it  is  often  otherwise 
in  practice),  respecting  the  disposition  of  every  office  in  which  the 
public  are  concerped,  than  this,  detur  digniori.  On  principles  of  public 
policy,  no  money  consideration  ought  to  influence  the  appointment  to 
such  offices  (J).  It  was  observed  of  old,  that  the  sale  of  offices  accom- 
plished the  ruin  of  the  Eoman  Eepublic  :  "  Nulla  alia  re  magis  Eomana 
Eespublica  interiit,  quam  quod  magistratus  officia  venalia  erant  "  (fe). 

§  296.  Another  class  of  agreements,  which  are  held  to  be  void  on 
account  of  their  being  against  public  policy,  are  such  as  are  founded 
upon  corrupt  considerations  or  moral  turpitude,  whether  they  stand 
prohibited  by  statute  or  not;  for  these  are  treated  as  frauds  upon  the 
public  or  moral  law.  The  rule  of  the  civil  law  on  this  subject  speaks 
but  the  language  of  universal  justice:  "Pacta,  quae  contra  leges 
constitutionesque,  vel  contra  bonos  mores  fiunt,  nuUam  vim  habere, 
indubitati  juris  est"  (l).  It  is  but  applying  a  preventive  check,  by 
withholding  every   encouragement  from  wrong,    and   aiming   thereby 

(e)  Ritchie  v.  Smith,  6  C.  B.  462. 

(/)  Reynell  v.  Sprye,  1  De  G.  M.  &  G.  660 ;  Rees  v.  De  Bemadij.  [1896]  2  Ch.  437 ; 
Holding  v.  Thompson,  [1907]  2  K.  B.  489. 

(g)  Hanington  v.  Du  Chastel,  1  Bro.  C.  C.  124;  Thomson  v.  Thomson,  7  Vee.  470. 
See  Hill  v.  Paul,  8  Gl.  &  F.  295. 

(h)  Morris  v.  MacCuUock,  2  Eden  190. 

(t)  Lord  Kenyon  in  Bachford  v.  Preston,  8  T.  E.  92. 

(ft)  Cited  Co.  Litt.  334  a. 

(I)  Cod.  Lib.  2,  tit.  3,  f.  6. 


§  295 — 298.]  CONSTRUCTIVE  FRAUD.  123 

to  enforce  the  obligations  of  virtue.  For,  although  the  law,  as  a 
science,  must  necessarily  leave  many  moral  precepts  without  due 
enforcement,  as  rules  of  imperfect  obligation  only,  it  is  most  studious 
not  thereby  to  lend  the  slightest  countenance  to  the  violations  of 
such  precepts.  Wherever  positive  law,  or  the  common  law,  or,  it  has 
been  said,  the  divine  law  prohibits  the  doing  of  certain  acts,  or  enjoins 
the  discharge  of  certain  duties,  any  agreement  to  do  such  acts,  or  not 
to  discharge  such  duties,  is  against  the  dearest  interests  of  society,  and, 
therefore,  is  held  void;  for,  otherwise,  the  law  would  be  open  to  the 
just  reproach  of  winking  at  crimes  and  omissions,  or  tolerating  in 
one  form  what  it  affected  to  reprobate  in  another.  Hence,  all  agree- 
ments, bonds,  and  securities,  given  as  a  price  for  future  illicit  inter- 
course {premium  pudoris),  or  for  the  commission  of  a  public  crime,  or 
for  the  violation  of  a  public  law,  or  for  the  omission  of  a  public  duty, 
are  deemed  incapable  of  confirmation  or  enforcement  upon  the  maxim, 
Ex  twpi  contractu  non  oritur  actio  (m).  An  agreement  not  under  seal 
for  any  of  the  above  purposes  would  be  unenforceable  at  law  and  in 
equity  for  want  of  a  consideration  (n).  Illegality  being  a  matter  of 
allegation  and  proof,  a  continued  illicit  cohabitation  does  not  warrant 
the  inference  that  a  security  was  given  to  attain  that  object,  omnia 
rite  esse  acta  presumuntur  (o). 

§  297.  Other  cases  might  be  put  to  illustrate  the  doctrine  of 
courts  of  equity  in  setting  aside  the  agreements  and  acts  in  fraud  of 
the  policy  of  the  law.  Thus,  where  a  parent  conveyed  land  to  his  son 
to  qualify  him  to  kill  game,  he  was  not  permitted  to  avoid  the  convey- 
ance (p).  So,  a  person  cannot  recall  a  conveyance  of  property  to  a 
party  with  whom  he  is  living  in  adultery  (g).  And  other  illustrations 
might  be  put  chosen  from  decided  cases  which  are  now  wholly  or 
largely  obsolete  (?■)■ 

§  298.  And  here  it  may  be  well  to  take  notice  of  a  distinction 
often,  but  not  universally,  acted  on  in  courts  of  equity  as  to  the 
nature  and  extent  of  the  relief  which  will  be  granted  to  persons  who 
are  parties  to  agreements  or  other  transactions  against  public  policy, 
and  therefore  are  to  be  deemed  paiiicipes  criminis.  In  general  (for 
it  is  not  universally  true),  where  parties  are  concerned  in  illegal 
agreements  or  other  transactions,  whether  they  are  mala  prohibita  or 
■mala  in  se,  courts  of  equity,  following  the  rule  of  law  as  to  participators 


(m)  Walker  v.  Perkins,  3  Burr.  1568;  Gray  v.  Mathias,  5  Ves.  286;  Kearley  v. 
Thomson,  24  Q.  B.  D.  742;  Consolidated  Exploration  &  Finance  Co.  v.  Musgrave, 
[1900]  1  Ch.  37. 

(n)  Beaumont  v.  Reeve,  8  Q.  B.  483.  See  Kekewich  v.  Manning,  1  De  G.  M.  &  G. 
176. 

(o)  In  re  Vallance,  Vallance  v.  Blagdon,  26  Ch.  D.  353. 

(p)  Brackenbury  v.  Brackenbury ,  2  J.  &  W.  391. 

(9)  Ayerst  v.  Jenkins,  L.  R.  16  Eq.  282. 

(r)  Wallis  V.  Duke  of  Portland,  3  Ves.  294;  Stevens  v.  Bagwell,  15  Ves.  139. 


124  EQUITY   JURISPRUDENCE.  [CH.    VII. 

in  a  common  crime  (s),  will  not  interpose  to  grant  any  relief;  acting 
(upon  the  known  maxim,  In  pari  delicto  potior  est  conditio  defendentis, 
et  possidentis  (t).  But  in  cases  where  the  agreements  or  other  trans- 
actions are  repudiated  on  account  of  their  being  against  public  policy, 
ithe  circumstance,  that  the  relief  is  asked  by  a  party  who  is  particeps 
•criminis,  is  not  in  equity  material.  The  reason  is,  that  the  public 
interest  requires  that  relief  should  be  given,  and  it  is  given  to  the 
public  through  the  party  (u).  And  in  these  cases  relief  will  be  granted 
not  only  by  setting  aside  the  agreement  or  other  transaction,  but  also, 
in  many  cases,  by  ordering  a  repayment  of  any  money  paid  under  it. 
Jiord  Thurlow,  indeed,  seems  to  have  thought  that,  in  all  eases  where 
money  had  been  paid  for  an  illegal  purpose,  it  might  be  recovered  back, 
observing  that  if  courts  of  justice  mean  to  prevent  the  perpetration 
of  crimes,  it  must  be,  not  by  allowing  a  man  who  has  got  possession 
to  remain  in  possession,  but  by  putting  the  parties  back  to  the  state 
in  which  they  were  before.  But  this  is  pushing  the  doctrine  to  an 
extravagant  extent,  and  effectually  subverting  the  maxim,  In  pari 
delicto  portior  est  conditio  defendentis.  The  ground  of  reasoning  upon 
which  his  lordship  proceeded  is  exceedingly  questionable  in  itself ; 
and  the  suppression  of  illegal  contracts  is  far  more  likely,  in  general, 
to  be  accomplished  by  leaving  the  parties  without  remedy  against  each 
-other,  and  by  thus  introducing  a  preventive  check,  naturally  connected 
with  a  want  of  confidence,  and  a  sole  reliance  upon  personal  honour. 
And  so,  accordingly,  the  modem  doctrine  is  established  (a;).  Belief  is 
not  granted  where  both  parties  are  truly  in  pari  delicto,  unless  in  cases 
where  public  policy  would  thereby  be  promoted  (y). 

§  299.  Even  in  cases  of  a  prsemium  pudicitise,  the  distinction  has 
been  constantly  maintained  between  bills  for  restraining  the  woman 
irom  enforcing  the  security  given,  and  bills  for  compelling  her  to  give 
up  property  already  in  her  possession  under  the  contract.  At  least 
"there  is  no  case  to  be  found,  where  the  contrary  doctrine  has  been 
acted  on,  except  where  creditors  were  concerned.  And  in  this  respect 
English  law  seems  to  have  had  a  steady  regard  to  the  policy  of  the 
Eoman  jurisprudence  (z). 

is)  Bull,  N.  P.  131,  132. 

(t)  Osborne  v.  Williams,  18  Ves.  379;  In  re  Great  Berlin  Steamboat  Co.  26  Ch. 
D.  616;  Kearley  v.  Thomson,  24  Q.  B.  D.  742. 

(u)  Williams  v.  Bayley,  L.  E.  1  H.  L.  200;  Jones  v.  Merioneth  Permanent 
Building  Society  [1892]  1  Ch.  173 ;  Martin  v.  Tomkinson,  [1893]  2  Q.  B.  121. 

(x)  See  Sharp  v.  Taylor,  2  Ph.  801. 

iy)  See  the  remarks  of  Pry,  L.J.,  Kearley  v.  Thomson,  24  Q.  B.  D".  742. 

(z)  Rider  v.  Kidder,  10  Ves.  366  ;  Ayerst  v.  Jenkins,  L.  E.  16  Eq.  282.  The  Eoman 
law  has  stated  some  doctrines  and  distinctions  upon  this  subject,  which  are  worthy 
of  consideration.  I  shall  quote  them  without  commenting  upon  them.  Three  cases 
are  put.  (1)  Where  the  turpitude  is  on  the  part  of  the  receiver  only;  and  there  the 
rule  is.  Quod  si  turpis  causa  accipientis  fuerit,  etiamsi  res  secuta  sit,  repeti  potest. 
Dig.  Lib.  12,  tit.  5,  f.  1,  §  2.  (2)  Where  the  turpitude  is  on  the  part  of  the  giver 
alone;  and  there  the  rule  is  the  contrary.     Cessat  quidem  condictio,  quum  turpiter 


§    299 — 301.]  CONSTRUCTIVE    FRAUD.  125> 

§  300.  And,  indeed,  in  cases  where  both  parties  are  in  delicto, 
concurring  in  an  illegal  act,  it  does  not  always  follow,  that  they  stand. 
in  pari  delicto;  for  there  may  be,  and  often  are,  very  different  degrees 
in  their  guilt  (a).  One  party  may  act  under  circumstances  of  oppres- 
sion, imposition,  hardship,  undue  influence,  or  great  inequality  of 
condition  or  age ;  so  that  his  guilt  may  be  far  less  in  degree  than  that  of 
his  associate  in  the  offence.  And,  besides,  there  may  be,  on  the  part 
of  the  court  itself,  a  necessity  of  supporting  the  public  interests  or 
public  policy,  in  many  cases,  however  reprehensible  the  acts  of  the 
parties  may  be  (b). 

§  301.  In  cases  of  usury,  this  distinction  had  been  adopted  by 
courts  of  equity  before  the  repeal  of  the  statutes  against  usury  by 
the  17  &  18  Vict.  c.  90.  While  the  statutes  were  in  existence  courts 
of  equity  followed  the  law  in  the  construction  of  the  statute.  If, 
therefore,  the  usurer  or  lender  came  into  a  court  of  equity,  seeking 
to  enforce  the  contract,  the  court  would  refuse  any  assistance,  and. 
repudiate  the  contract.  But,  on  the  other  hand,  if  the  borrower  came 
into  a  court  of  equity,  seeking  relief  against  the  usurious  contract, 
the  only  terms  upon  which  the  court  would  interfere,  were,  that  the 
plaintiff  would  pay  the  defendant  what  was  really  and  bona  fide  due 
to  him,  deducting  the  usurious  interest,  and,  if  the  plaintiff  did  not 
make  such  offer  in  his  bill,  the  defendant  might  demur  to  it,  and  the 
bill  would  be  dismissed  (c).  The  ground  of  this  distinction  was,  that  a 
court  of  equity  was  not  positively  bound  to  interfere  in  such  cases  by 
an   active  exertion   of   its   powers;    but   it  had    a   discretion   on   the 

datur.  Pothier,  Pand.  Lib.  12,  tit.  5,  art.  8.  (3)  Where  the  turpitude  affects  both 
parties,  and  there  the  rule  is,  Ubi  autem  et  dantis  et  accipientis  turpitude  versatnr, 
non  posse  repeti  dicimus;  veluti,  si  pecunia  detur,  ut  male  judicetur.  Dig.  Lib.  12, 
tit.  5,  f.  3;  Pothier,  Pand.  Lib.  12,  tit.  S,  n.  7.  The  reason  given  is  :  In  pari  causa 
possessor  potior  haberi  debet.  Dig.  Lib.  50,  tit.  17,  f.  128;  Pothier,  Pand.  Lib.  12, 
tit.  5,  D.  7.  Several  other  examples  are  given  under  this  head.  Idem,  si  ob  stuprum 
datum  sit;  vel  si  quis,  in  adulterio  reprehensus,  redemerit  se,  cessat  enim  repetitio. 
Item,  so  dederit  fur,  ne  proderetur;  quoniam  utriusque  turpitudo  versatur,  cessat 
repetitio.  Dig.  Lib.  12,  tit.  5,  f.  4;  Pothier,  Pand.  Lib.  12,  tit.  5,  n.  7.  Cum  te 
propter  turpem  causam  contra  disciplinam  tempomm  meo  rum,  domum  adversariae 
dedisse  profltearis ;  frustra  eam  tibi  resitui  desideras ;  cum  in  pari  causa  possessoris 
conditio  melior  habeatur.  Cod.  Lib.  4,  tit.  7,  1.  2;  Pothier,  Pand.  Lib.  12,  tit.  6,  1.  7. 
Sed  quod  mgretrici  datur,  repeti  non  potest.  Sed  nova  ratione,  non  ea,  quod  utriusque 
turpitudo  versatur,  sed  solius  dantis;  a  new  reason,  which  Pothier,  as  well  as  Ulpian, 
seems  to  doubt.  See  Dig.  Lib.  12,  tit.  5,  f.  4,  §  3;  Pothier,  Pand.  Lib.  12,  tit.  5, 
n.  7,  and  note  (6).  On  the  other  hand,  when  the  money  had  not  been  paid,  or  the 
contract  fulfilled,  the  Eoman  law  deemed  the  contract  void.  Quamvis  enim  utriusque 
turpitudo  versatur,  ac  solutae  quantitatis  cessat  repetitio,  tamen  ex  hujusmodi  stipula- 
tione,  contra  bonos  mores  interposita,  denegandas  esse  aotiones  juris  auctoritate 
demonstratur.     Cod.  Lib.  4,  tit.  7,  1.  5;  Pothier,  Pand.  Lib.  12,  tit.  5,  n.  9. 

(a)  Osborne  v.  Williams,  18  Ves.  379. 

(b)  Osborne  v.  Williams,  18  Ves.  379;  Osbaldiston  v.  Simpson,  13  Sim.  513; 
Williams  v.  Bayley,  L.  E.  1  H.  L.  200;  Jones  v.  Merioneth  Building  Soc.,  [1892] 
1  Ch.  173. 

(c)  W V.  B ,  32  Beav.  574;  Davies  v.   Otty,  35  Beav.  208;  Mason  v. 

Gardiner,  4  Bro.  C.  C.  4.36. 


126  EQUITY   JURISPRUDENCE.  [CH.    VII. 

subject,  and  might  prescribe  the  terms  of  its  interference;  and  he 
who  seeks  equity  at  its  hands,  may  well  be  required  to  do  equity. 
And  it  was  considered  against  conscience,  that  the  party  should  have 
full  relief,  and  at  the  same  time  pocket  the  money  lent,  which  may 
have  been  granted  at  his  own  mere  solicitation  (d).  For  then  a  statute, 
made  to  prevent  fraud  and  oppression,  would  be  made  the  instrument 
of  fraud.  But,  in  the  other  case,  if  equity  had  relieved  the  lender, 
who  was  plaintiff,  it  would  have  been  aiding  a  wrongdoer,  who  was 
seeking  to  make  the  court  the  means  of  carrying  into  effect  a  trans- 
action manifestly  wrong  and  illegal  in  itself. 

§  302.  And,  upon  the  like  principles,  if  the  borrower  had  paid 
the  money  upon  an  usurious  contract,  courts  of  equity  (as,  indeed, 
have  also  courts  of  law)  (e),  would  assist  him  to  recover  back  the  excess 
paid  beyond  principal  and  lawful  interest;  but  not  further.  For  it  is  no 
just  objection  to  say,  that  he  is  particeps  criminis,  or  that  Volenti 
non  fit  injuna.  It  would  be  absurd  to  apply  the  latter  maxim  to 
the  case  of  a  man  who,  from  mere  necessity,  pays  more  than  the 
other  can  in  justice  demand,  and  who  has  been  significantly  called 
the  slave  of  the  lender.  He  can  in  no  just  sense  be  said  to  pay 
voluntarily.  And  as  to  being  particeps  criminis,  he  stands  in 
vinculis,  and  is  compelled  to  submit  to  the  terms  which  oppression 
and  his  necessities  impose  on  him  (/).  Nor  can  it  be  said,  in  any  case 
of  oppression,  that  the  party  oppressed  is  particeps  criminis;  since 
it  is  that  very  hardship  which  he  labours  under,  and  which  is  imposed 
upon  him  by  another,  that  makes  the  crime  {g). 

§  303.  In  regard  to  gaming  contracts,  it  would  follow,  a  fortiori, 
that  courts  of  equity  ought  not  to  interfere  in  their  favour,  but  ought 
to  afford  aid  to  suppress  them ;  since  not  only  can  no  action  be  brought 
on  them  by  statute,  but  they  may  be  justly  pronounced  to  be  immoral, 
as  the  practice  tends  to  idleness,  dissipation,  and  the  ruin  of 
families  (h).  If  the  money  were  actually  paid  in  a  case  of  gaming, 
courts  of  equity  ought  not  to  assist  the  loser  to  recover  it  back,  upon 
the  ground  that  he  is  particeps  criminis.  Lord  Talbot  on  one  occasion 
said:  "  The  case  of  gamesters,  to  which  this  of  [usury]  has  been  com- 
pared, is  no  way  parallel;  for  there  both  parties  are  criminal.  And, 
if  two  persons  will  sit  down,  and  endeavour  to  ruin  one  another,  and 

(d)  Scott  v.  Nesbit,  2  Bro.  C.  C.  641;  s.c.  2  Cox  183;  Benfield  v.  Solomons,  9 
Ves.  84. 

(e)  Fitzroy  v.  Gwillim,  1  T.  R.  153. 

(/)  Bosanquet  v.  Dashwood,  Cas.  temp.  Talb.  39;  Rawden  v.  Shadwell,  Ambler 
269,  and  Mr.  Blunt 's  notes. 

(g)  Lord  Chancellor  Talbot  in  Bosanquet  v.  Dashwood,  Cas.  temp.  Talb.  41. 
The  same  principle  applies  to  cases  of  annuities  set  aside  for  want  of  a  memorial 
duly  registered;  and  an  account  of  the  consideration  paid,  and  payments  made,  will  be 
taken,  and  the  balance  only  will  be  required  to  be  paid,  upon  a  decree  to  give  up  the 
security.     Holbrook  v.  Sharpley,  19  Ves.  131. 

(h)  Robinson  v.  Bland,  2  Burr.  1077. 


§  302 307.]  CONSTRUCTIVE  FRAUD.  127 

one  pays  the  money;  if,  after  payment,  he  cannot  recover  it  at  law, 
I  do  not  see  that  a  court  of  equity  has  anything  to  do,  but  to  stand 
neuter,  there  being  in  that  case  no  oppression  upon  the  party,  as  in 
this  "  (i).  It  does  not  seem  that  the  Court  of  Chancery  ever  assumed 
a  jurisdiction  to  set  aside  securities  given  in  payment  of  gambling  debts. 
These  are  novi^  struck  at  by  the  Gaming  Act  of  9  Anne  c.  19,  and  the 
Gaming  Act  of  1835. 

§  305.  The  civil  lavi'  contains  a  most  wholesome  enforcement  of 
moral  justice  upon  this  subject.  It  not  only  protects  the  loser 
against  any  liability  to  pay  the  money  won  in  gaming;  but  if  he  has 
paid  the  money,  he  and  his  heirs  have  a  right  to  recover  it  back  at 
any  distance  of  time ;  and  no  presumption  or  limitation  of  time  runs 
against  the  claim.  "  Victum  in  alese  lesu,  non  posse  conveniri.  Et, 
si  solverit,  habere  repetitionem,  tam  ipsum,  quam  hseredes  ejus, 
adversus  victorem  et  ejus  hseredes;  idque  perpetuo,  et  etiam  post 
triginta  annos  "  (fc).  Thirty  years  was  the  general  limitation  of  rights 
in  other  cases. 

§  306.  Questions  are  also  often  made,  how  far  contracts,  which 
are  illegal  by  some  positive  law,  or  which  are  declared  so  upon  prin- 
ciples of  public  policy,  are  capable,  as  between  the  parties,  of  a 
substantial  confirmation.  This  subject  has  been  already  alluded  to, 
and  will  be  again  touched  in  other  places.  The  general  rule  is,  that 
wherever  any  contract  or  conveyance  is  void,  either  by  a  positive  law, 
or  upon  principles  of  public  policy,  it  is  deemed  incapable  of  confirma- 
tion upon  the  maxim.  Quod  ab  initio  non  valet,  in  traciu  temporis  non 
convalescet  (l).  But  where  it  is  merely  voidable,  or  turns  upon  cir- 
cumstances of  undue  advantage,  surprise,  or  imposition,  there,  if  it  is 
deliberately,  and  upon  full  examination,  confirmed  by  the  parties,  such 
confirmation  will  avail  to  give  it  an  ex  post  facto  validity  (m),  and 
lapse  of  time  is  regarded  as  sufficient  evidence  of  confirmation  if 
unexplained  (n),  unless,  as  by  the  operation  of  the  Infants'  Eelief  Act, 
1874,  such  promises  are  incapable  of  confirmation. 

§  307.  Let  us,  in  the  next  place,  pass  to  the  consideration  of  the 
second  head  of  constructive  frauds ;  namely,  of  those  which  arise 
from  some  peculiar  confidential  or  fiduciary  relation  between  the 
parties.  In  this  class  of  cases,  there  is  often  to  be  found  some  inter- 
mixture of  deceit,  imposition,  overreaching,  unconscionable  advantage, 
or  other  mark  of  direct  and  positive  fraud.  But  the  difficulty  of  proof 
has  induced  courts  of  equity  to  grant  relief  independent  of  any  such 

(i)  Bosanquet  v.  Dashwood,  Cas.  t.  Talb.  41 ;  Quarrier  v.  Colston,  1  Ph.  147. 

(k)  Cod.  Lib.  3,  tit.  43,  1.  1. 

(/)  Vernon's  Case,  i  Co.  2  h.;  Brook  v.  Hook,  L.  E.  6  Ex.  89;  Goodwin  v. 
Fielding,  i  De  G.  M.  &  G.  90. 

(m)  Crowe  v.  Ballard,  1  Ves.  Jr.  215;  Morse  v.  Royal,  12  Ves.  355;  Savery  v. 
King,  5  H.  L.  C.  627. 

(n)  Champion  v.  Rigby,  Taml.  421 ;  affd.  7  L.  J.  N.  S.  Ch.  211 ;  Allcard  v.  Skinner, 
36  Ch.  D.  US. 


128  EQUITY   JURISPRUDENCE.  [CH.    VII, 

ingredient,  upon  a  motive  of  general  public  policy  (o);  and  it  is 
designed,  in  some  degree,  as  a  protection  to  the  parties  against  the 
effects  of  overweening  confidence,  and  self-delusion,  and  the  infirmities 
of  hasty  and  precipitate  judgment.  These  courts  will,  therefore,  often 
interfere  in  such  cases,  where,  but  for  such  a  peculiar  relation,  they 
would  either  abstain  wholly  from  granting  relief,  or  would  grant  it  in  a 
very  modified  and  abstemious  manner  (p).  The  eases  of  influence 
arising  by  inference  from  the  situation  of  the  parties  will  be  discussed 
in  succeeding  paragraphs.  It  is  also  to  be  observed  that  relief  will  be 
granted  where  undue  influence  has  been  proved  to  exist  in  fact  (g). 

§  308.  It  is  undoubtedly  true,  as  has  been  said,  that  it  is  not  upon 
the  feelings  which  a  delicate  and  honourable  man  must  experience, 
nor  upon  any  notion  of  discretion,  to  prevent  a  voluntary  gift  or  other 
act  of  a  man,  whereby  he  strips  himself  of  his  property,  that  court® 
of  equity  have  deemed  themselves  at  liberty  to  interpose  in  eases  of 
this  sort  {r).  They  do  not  sit,  or  affect  to  sit,  in  judgment  upon  cases, 
as  custodes  morum,  enforcing  the  strict  rules  of  morality.  But  they 
do  sit  to  enforce  what  has  not  inaptly  been  called  a  technical  morality. 
If  confidence  is  reposed,  it  must  be  faithfully  acted  upon,  and  pre- 
served from  any  intermixture  of  imposition.  If  influence  is  acquired, 
it  must  be  kept  free  from  the  taint  of  selfish  interest,  and  cunning, 
and  overreaching  bargains.  If  the  means  of  personal  control  are  given, 
they  must  be  always  restrained  to  purposes  of  good  faith  and  personal 
good.  Courts  of  equity  will  not,  therefore,  arrest  or  set  aside  an  act 
or  contract  merely  because  a  man  of  more  honour  would  not  have 
entered  into  it.  There  must  be  some  relation  between  the  parties, 
which  compels  the  one  to  make  a  full  discovery  to  the  other,  or  to 
abstain  from  all  selfish  projects.  But,  when  such  a  relation  does  exist, 
courts  of  equity,  acting  upon  this  superinduced  ground,  in  aid  of 
general  morals,  will  not  suffer  one  party,  standing  in  a  situation  of 
which  he  can  avail  himself  against  the  other,  to  derive  advantage 
from  that  circumstance,  for  it  is  founded  in  a  breach  of  confidence. 
The  general  principle,  which  governs  in  all  cases  of  this  sort,  is,  that 
if  a  confidence  is  reposed,  and  that  confidence  is  abused,  courts  of 
equity  will  grant  relief  (s). 

§  309.  In  the  first  place,  as  to  the  relation  of  parent  and  child. 
A  parent  may  exercise  a  natural  and  just  influence  over  a  child, 
and  so  long  as  he  does  not  abuse  his  position,  he  rnay  retain  a  benefit 

(o)  Ex  parte  Lacey,  6  Ves.  625;  Dent  v.  Bennett,  4  M.  &  Cr.  269;  Benson  v. 
Heathorn,  1  Y.  &  C.  Ch.  326. 

(p)  Goddard  v.  Carlisle,  9  Price  169 ;  Wright  v.  Carter,  1903,  1  Ch.  27. 

(q)  Smith  V.  Kay,  7  H.  L.  C.  750. 

(r)  Huguenin  v.  Baseley,  14  Ves.  290. 

(s)  Dent  V.  Bennett,  4  M  &  Cr.  269;  Boyse  v.  Rossborough,  6  H.  L.  C.  2;  Wright 
V.  Carter,  [1903]  1  Ch.  27;  In  re  Coomber ;  Coomber  v.  Coomber,  [1911]  1  Ch.  723. 


§  308 — 310.]  CONSTRUCTIVE  FRAUD.  129 

conferred  upon  him  by  his  child  (<).  Of  this  character  are  advantages 
obtained  by  a  parent  upon  a  resettlement  of  family  estates.  But  the 
general  rule  is  that  when  a  child  who  is  not  emancipated  from  his 
parent's  control,  confers  a  benefit  upon  the  parent,  if  the  transaction 
is  subsequently  impeached  by  the  child,  the  onus  is  on  the  parent  to 
show  that  the  child  had  independent  advice,  and  that  he  executed  the 
deed  with  full  knowledge  of  its  contents,  and  with  a  free  intention  of 
giving  the  parent  the  benefit  conferred  by  it.  And,  according  to  the 
universal  rule  in  equity,  volunteers  claiming  through  the  parent,  and 
all  persons  with  notice  of  the  circumstances  which  raise  the  equity, 
stand  in  no  better  position  than  the  parent  (m).  It  is  desirable,  though 
not  essential,  when  a  child  makes  a  gift  to  his  father,  that  the  child 
and  the  father  should  be  represented  by  independent  solicitors  (x). 
And  the  same  principles  apply  to  a  voluntary  gift  to  a  person  who  has 
put  himself  in  loco  pureniis  towards  the  donor  {y). 

§  310.  In  the  next  place,  as  to  the  relation  of  client  and  legal 
adviser.  It  is  obvious  that  this  relation  must  give  rise  to  great  con- 
fidence between  the  parties,  and  to  very  strong  influences  over  the 
actions,  and  rights,  and  interests  of  the  client  (2).  The  situation  of  a 
legal  adviser  puts  it  in  his  power  to  avail  himself,  not  only  of  the 
necessities  of  his  client,  but  of  his  good  nature,  liberality,  and  credulity, 
to  obtain  undue  advantages,  bargains,  and  gratuities.  Hence,  the 
law,  with  a  wise  providence,  not  only  watches  over  all  the  transactions 
of  parties  in  this  predicament,  but  it  often  interposes  to  declare  trans- 
actions void,  which,  between  other  persons,  would  be  held  unobjection- 
able. It  does  not  so  much  consider  the  bearing  or  hardship  of  its 
doctrine  upon  particular  cases,  as  it  does  the  importance  of  preventing 
a  general  public  mischief,  which  may  be  brought  about  by  means, 
secret  and  inaccessible  to  judicial  scrutiny,  from  the  dangerous 
influences  arising  from  the  confidential  relation  of  the  parties  (o). 
There  are  cases  in  which  it  has  been  asserted  that,  while  the  relation  of 
client  and  solicitor  subsists  in  its  full  vigour,  the  latter  shall  derive 
no  benefit  to  himself  from  the  contracts,  or  bounty,  or  other  negotia- 
tions of  the  former  (h);  but  the  cases  fall  short  of  this,  the  principle 
being  that  the  legal  adviser  must  establish  that  a  gift  was  the  free 

(t)  Bellamy  v.  Sabine,  2  Ph.  425;  Hoghton  v.  Hoghton,  1-5  Beav.  278;  Hartopp  v. 
HaHopp,  21  Beav.  259;  Hoblyn  v.  Hoblyn,  41  Ch.  D.  200. 

(«)  Savery  v.  King,  6  H.  L.  C.  627;  Baker  v.  Bradley,  7  De  G.  M.  &  G.  597; 
Turner  v.  Collins,  L.  E.  7  Ch.  329 ;  Bainbrigge  v.  Brown,  18  Ch.  D.  188. 

(x)  Gibbs  v.  Daniel,  4  Giff.  1;  Bainbrigge  v.  Brown,  18  Ch.  D.  188;  Wright  v. 
CaHer,  [1903]  1  Ch.  27. 

(y)  Archer  v.  Hudson,  7  Beav.  551;  Maitland  v.  Irving,  15  Sim.  437  ;  Maitland  v. 
Backhouse,  16  Sim.  68;  Kempson  v.  Ashbee,  L.  E.  10  Ch.  15. 

(z)  Holman  v.  Loynes,  4  De  G.  M.  &  G.  270;  Savery  v.  King,  5  H.  L.  C.  627; 
Corley  v.  Lord  Stafford,  1  De  G.  &  J.  238. 

(o)  Wood  V.  Downes,  18  Ves.  126;  Broun  v.  Kennedy,  4  De  G.  J.  &  S.  217. 

(b)  E.g.,  Wood  v.  Downes,  18  Ves.  126;  Goddard  v.  Carlisle,  9  Price  169; 
Edwards  v.  Meyrick,  2  Hare  68;  Tomson  v.  Judge,  3  Drew.  306. 

E.J.  9 


130  EQUITY   JUEISPRUDENCE.  [CH.    VII. 

uninfluenced  act  of  the  client  (c),  and  that  in  the  matter  of  a  sale  the 
legal  adviser  imparted  to  his  client  all  the  information  the  legal  adviser 
in  fact  possessed,  or  which  the  client  had  a  right  to  expect,  if  he  had 
been  advised  by  a  skilled  independent  adviser  (d).  In  the  case  of 
testamentary  gifts,  this  purely  equitable  rule  is  inapplicable  (e).  It  is 
still  a  doubtful  point  whether  any  difference  exists  in  point  of  principle 
between  gifts  and  purchases  (/).  The  true  explanation  seems  to  rest 
in  this,  that  courts  of  equity  have  always  favoured  purchasers,  and 
refused  to  consider  volunteers,  as  having  a  meritorious  claim.  It  is 
also  necessary  to  observe  that  the  relationship  of  legal  adviser  and 
client  must  in  fact  exist  in  order  that  a  transaction  should  be  impeach- 
able, and  this  necessitates  in  each  case  the  determination  of  a  question 
of  fact  (g). 

§  311.  On  the  one  hand,  it  is  not  necessary  to  establish  that  there 
has  been  fraud  or  imposition  upon  the  client ;  and,  on  the  other 
hand,  it  is  not  necessarily  void  throughout,  ip'SO  facto.  But  the 
burden  of  establishing  its  perfect  fairness,  adequacy,  and  equity,  is 
thrown  upon  the  legal  adviser  upon  the  general  rule,  that  he  who 
bargains  in  a  matt-er  of  advantage  with  a  person  placing  a  confidence 
in  him,  is  bound  to  show  that  a  reasonable  use  has  been  made  of  that 
confidence ;  a  rule  applying  equally  to  all  persons  standing  in  confiden- 
tial relations  with  each  other  (h).  If  no  such  proof  is  established, 
courts  of  equity  treat  the  case  as  one  of  constructive  fraud.  In  this 
respect  there  is  said  to  be  a  distinction  between  the  case  of  a  solicitor 
and  client,  and  that  of  a  trustee  and  cestui  que  trust.  In  the  former, 
if  the  solicitor,  retaining  his  connection,  contracts  with  his  client,  he  is 
subject  to  the  onus  of  proving  that  no  advantage  has  been  taken  of 
the  situation  of  the  latter.  But  in  the  case  of  a  trustee,  it  is  not 
sufficient  to  show  that  no  advantage  has  been  taken;  but  the  cestui 
que  trust  may  set  aside  the  transaction  at  his  own  option  (i).  The 
reason  of  this  distinction,  which  savours  somewhat  of  nicety,  if  not 
of  subtilty,  seems  to  be,  that  in  the  case  of  clients  the  rule  is  general 
and  applicable  to  all  contracts,  conveyances,  and  negotiations  between 

(c)  Harris  v.  Tremenheere,  15  Ves.  40;  Hunter  v.  Atkins,  3  M.  &  K.  113;  In  re 
Coomber;  Coomher  v.  Coomher,  [1911]  1  Ch.  723. 

(d)  Bulkley  v.  Wilford,  2  CI.  &  F.  102;  Corley  v.  Lord  Stafford,  1  De  G.  &  J.  238; 
Luddy's  Trustee  v.  Peard,  33  Ch.  D.  500;  Bell  v.  Marsh,  [1903]  1  Ch.  528. 

(e)  Boyse  v.  Bossborough,  6  H.  L.  C.  2;  Parfitt  v.  Lawless,  L.  E.  2  P.  &  D.  462 : 
Baudains  v.  Richardson,  [1906]  A.  C.  169. 

(/)  See  Holman  v.  Loynes,  4  De  G.  M.  &  G.  270;  Morgan  v.  Minett,  6  Ch.  D. 
638;  In  re  Haslam  and  Hier-Evans,  [1902]  1  Ch.  765. 

ig)  Goddard  v.  Carlisle,  9  Price,  169;  Austin  v.  Chambers,  6  CI.  &  P.  1;  Carter 
v.  Palmer,  8  CI.  &  P.  657;  Edwards  v.  Meyrick,  2  Hare  60;  Holman  v.  Loynes,  4 
De  G.  M.  &  G.  270;  Guest  v.  Smythe,  L.  E.  5  Ch.  551;  Allison  v.  Clavhills,  97  L  T 
709. 

(h)  Gibson  v.  Jeyes,  6  Ves.  278;  Montesquieu  v.  Sandys,  18  Ves.  313;  Dent  v. 
Bennett,  4  M.  &  Cr.  269;  CaHer  v.  Palmer,  8  CI.  &  P.  657. 

(t)  Cane  v.  Lord  Allen,  2  Dow  289,  299. 


§  311 — 313.]  CONSTRUCTIVE  FRAUD.  131 

the  solicitor  and  client,  and  is  not  limited  to  the  property  about  which 
the  solicitor  is  retained,  or  the  suit  in  which  he  is  acting.  In  the  case 
of  a  trustee,  the  rule  giving  the  cestui  que  trust  an  option,  is  limited 
to  the  purchase  of  the  first  property,  and  as  to  other  property  it  would 
seem  that  the  rule  is  the  same  as  in  other  fiduciary  relations,  that  is, 
at  most,  it  only  shifts  the  burden  of  proof  from  the  seller  to  the  buyer, 
to  show  the  entire  fairness  of  the  transaction;  or  leaves  the  seller  to 
establish  presumptively,  that  there  has  been  some  irregularity  in  the 
bargain,  or  some  influence  connected  with  the  relation  under  which 
it  has  been  made. 

§  312.  Thus,  if  a  conveyance  is  obtained  by  a  solicitor  from  a  client, 
it  will  be  set  aside  as  obtained  by  undue  influence,  and  the  property 
will  stand  charged  in  the  hands  of  the  solicitor  with  the  sums  of  money 
actually  expended  by  him  (k),  or  which  he  can  show  to  be  justly 
due  (I),  but  subject  to  the  charge  the  property  is  deemed  the  property 
of  the  client.  So,  also,  where  a  solicitor's  clerk,  who  was  censulted 
by  a  lady  in  regard  to  a  mortgage  on  her  estate,  by  means  of  the 
knowledge  thus  acquired,  was  enabled  to  purchase  the  mortgage  at 
much  less  than  its  amount,  it  was  held  that  the  lady  was  entitled  to 
the  benefit  of  the  bargain  (m).  And  where  the  solicitor  becomes  the 
purchaser  of  an  estate  of  his  client,  the  burden  of  sustaining  it,  at 
least  within  twenty  years,  is  upon  him ;  and  it  has  been  said  by 
eminent  judges,  that  the  same  weight  ought  not  to  be  given  to  the 
lapse  of  time,  during  the  continuance  of  the  relation  of  attorney  and 
client,  as  in  other  cases  (n-).  Where  the  solicitor  proposes  to  take  any 
contract  from  his  client  for  compensation,  beyond  what  the  law  pro- 
vides, or  in  a  different  form  more  advantageous  to  himself,  it  is  his 
' '  bounden  duty  ' '  to  inform  his  client,  that  the  law  allows  no  such 
charge   (o). 

§  313.  Indeed,  the  general  principle  is  so  well  established,  that 
Lord  Eldon,  on  one  occasion,  said:  "It  is  almost  impossible,  in  the 
course  of  the  connection  of  guardian  and  ward,  attorney  and  client, 
trustee  and  cestui  que  trust,  that  a  transaction  shall  stand,  purporting 
to  be  bounty  for  the  execution  of  an  antecedent  duty  "  (p).  But, 
where  the  relation  is  completely  dissolved,  and  the  parties  are  no 
longer  Under  the  antecedent  influence,  but  deal  with  each  other  at 
arm's  length,   there  is  no  ground  to  apply  the   principle,   and   they 


(k)  Jones  v.  Thomas,  2  Y.  &  C.  Ex.  498;  Lewis  v.  Hillman,  3  H.  L.  C.  607. 

(l)  Lawless  v.  Mansfield,  1  Dr.  &  War.  557;  Thomas  v.  Lloyd,  3  Jnr.  N.S.  288; 
Gresley  v.  Mousley,  3  De  &.  F.  &  J.  433. 

(m)  Hobday  v.  Peters,  28  Beav.  349. 

(n)  Gresley  v.  Mousley,  4  De  G.  &  J.  78. 

(o)  Bulkley  v.  Wilford,  2  CI.  &  F.  102;  Rhodes  v.  Bate,  L.  E.  1  Ch.  257;  Coch- 
bum  V.  Edwards,  18  Ch.  449. 

(p)  Hatch  V.  Hatch,  9  Ves.  296,  297. 


132  EQUITY   JURISPRUDENCE.  [CH.    VII. 

stand  upon  the  rights  and  duties  common  to  all  other  persons  (g). 
And  the  __same  rule  will  or  may  apply,  where  the  transaction  is  totally 
disconnected  with  the  relation,  and  concerns  objects  and  things  not 
embraced  in,  or  affected  by,  or  dependent  upon,  that  relation  (r); 
and  there  is  an  absence  of  all  other  circumstances,  which  may  create 
a  just  suspicion  as  to  the  integrity  and  fairness  of  the  transaction. 

§  314.  Similar  considerations  apply  to  the  case  of  a  medical 
adviser  and  his  patient  (s).  For  it  would  be  a  meagre  sort  of  justice  to 
say  that  the  sort  of  policy  which  has  induced  the  court  to  interfere 
between  client  and  solicitor,  should  be  restricted  to  such  cases;  since 
as  much  mischief  might  be  produced,  and  as  much  fraud  and  dis- 
honesty be  practised,  if  transactions  were  permitted  to  stand,  which 
arose  betwen  parties  in  equally  confidential  relations. 

§  315.  In  the  next  place,  the  relation  of  principal  and  agent.  This 
is  affected  by  the  same  considerations  as  the  preceding,  founded  upon 
the  same  enlightened  public  policy  (f).  In  all  cases  of  this  sort-  the 
principal  contracts  for  the  aid  and  benefit  of  the  skill  and  judgment 
of  the  agent,  and  the  habitual  confidence  reposed  in  the  latter,  make 
all  his  acts,  and  statements  possess  a  commanding  influence  over  the 
former.  Indeed,  in  such  cases,  the  agent  too  often  so  entirely  misleads 
the  judgment  of  his  principal  that,  while  he  is  seeking  his  own  peculiar 
advantage,  he  seems  but  consulting  the  advantage  and  interest  of  his 
principal;  placing  himself  in  the  odious  predicament  so  strongly  stig- 
matized by  Cicero  :  "  Totius  autem  injustitise  nulla  capitalior  est,  quam 
eorum,  qui,  cum  maxime  fallunt,  id  agunt,  ut  viri  boni  esse  vide- 
antur  "  (u).  It  is,  therefore,  for  the  common  security  of  all  mankind, 
that  gifts 'procured  by  agents,  and  purchases  made  by  them,  from  their 
principals,  should  be  scrutinized  with  a  close  and  vigilant  suspicion. 
And,  indeed,  considering  the  abuses  which  may  attend  any  dealings 
of  this  sort  between  principals  and  agents,  a  doubt  has  been  expressed 
whether  it  would  not  have  been  wiser  for  the  law  in  all  cases  to  have 
prohibited  them ;  since  there  must  almost  always  be  a  conflict  between 
duty  and  interest  on  such  occasions.  Be  this  as  it  may,  it  is  very 
certain  that  agents  are  not  permitted  to  become  secret  vendors  or 
purchasers  of  property  which  they  are  authorized  to  buy  or  sell  for  their 
principals  (x) ;  or,  by  abusing  their  confidence,  to  acquire  unreasonable 


iq)  Gibson  v.  Jeyes,  6  Yes.  277  ;  Guest  v.  Smythe,  L.  E.  5  Ch.  551 ;  Bell  v.  Marsh, 
[1898]  1  Ch.  212;  Allison  v.  Clayhills,  97  L.  T.  709. 

(r)  Montesquieu  v.  Sandys,  18  Ves.  313;  Jones  v.  Thomas,  2  Y.  &  Coll.  Ex.  498. 

(s)  Dent  V.  Bennett,  i  Myl.  &  Or.  269;  Gibson  v.  Russell,  2  Y.  &  Coll.  Ch.  104; 
Billage  v.  Southee,  9  Hare  534. 

(t)  Benson  v.  Heathorn,  1  Y.  &  Coll.  Ch.  326. 

(u)  Cic  de  Offic.  Lib.  1,  ch.  13. 

(x)  Lewis  V.  Hillman,  3  H.  L.  C.  607 ;  Kimber  v.  Barber,  L.  B.  8  Ch.  56;  Hoohe- 
foucauld  V.  Boustead,  [1897]  1  Ch.  196;  Att.-Gen.  {Canada)  v.  Standard  Trust  Co.  of 
N.  y.,  [1911]  A.  C.  498. 


I  314 — 317.]  CONSTRUCTIVE  FRAUD.  l33 

gifts  or  advantages  {y) ;  unless  known  and  sanctioned  by  the  prin- 
cipal (z);  or,  indeed,  to  deal  validly  with  their  principals  in  any  case, 
except  where  there  is  the  most  entire  good  faith,  and  a  full  disclosure 
of  all  facts  and  circumstances,  and  an  absence  of  all  undue  influence, 
advantage,  or  imposition  (zz). 

§  316.  Upon  these  principles,  if  an  agent  sells  to  his  principal  his 
own  property,  as  the  property  of  another,  without  disclosing  the  fact, 
the  bargain,  at  the  election  of  the  principal,  will  be  held  void  (a).  So, 
if  an  agent,  employed  to  purchase  for  another,  purchases  for  himself, 
he  will  be  considered  as  the  trustee  of  his  employer  (b).  Therefore,  if 
a  person  is  employed  as  an  agent,  to  purchase  up  a  debt  of  his 
employer,  he  cannot  purchase  the  debt  upon  his  own  account,  for  he 
is  bound  to  purchase  it  at  as  low  a  rate  as  he  can ;  and  he  would 
otherwise  be  tempted  to  violate  his  duty  (c).  The  same  rule  applies  to 
a  surety,  who  purchases  up  the  debt  of  his  principal  (d).  And,  there- 
fore, in  each  case,  if  a  purchase  is  made  of  the  debt,  the  sigent  or 
surety  can  entitle  himself,  as  against  his  principal,  to  no  more  than  he 
has  actually  paid  for  the  debt.  So,  if  an  agent  discover  a  defect  in  the 
title  of  his  principal  to  land,  he  cannot  misuse  it  to  acquire  a  title  for 
himself;  if  he  do,  he  will  be  held  a  trustee  for  his  principal  (e). 

§  317.  In  the  next  place,  as  to  the  relation  of  guardian  and  ward. 
In  this  most  important  and  delicate  of  trusts  the  same  principles 
prevail,  but  with  an  important  modification.  A  guardian  is  not  bound 
to  a  strict  account  of  moneys  received  by  him  for  the  maintenance  of 
an  infant;  it  is  sufficient  if  he  has  substantially  complied  with  his  duty 
to  maintain  the  infant  (/).  It  is  obvious  that,  during  the  existence  of 
the  guardianship,  where  the  ward  is  necessarily  a  minor,  the  transac- 
tions between  the  guardian  and  the  ward  cannot  be  binding  upon  the 
latter.  But  courts  of  equity  will  not  permit  transactions  between 
guardians  and  wards  to  stand,  even  when  they  have  occurred  after  the 
minority  has  ceased,  and  the  relation  become  thereby  actually  ended, 
if  the  intermediate  period  be  short,  unless  the  circumstances  demon- 
strate, in  the  highest  sense  of  the  terms,  the  fullest  deliberation  on  the 
part  of  the  ward,  and  the  most  abundant  good  faith  (uberrima  fides) 

iy)  Fawcett  v.  Whitehouse,  1  Eu33.  and  M.  132;  Boston  Deep  Sea  Fishing  Go. 
v.  Ansell,  39  Ch.  D.  339;  Powell  v.  Evans,  Jones  £  Co.,  [1905]  1  K.  B.  11.  See  also 
Illegal  Commissions  Act. 

(z)  Great  Western  Insurance  Co.  v.  Cunlijfe,  L.  E.  9  Ch.  525;  Baring  v.  Stanton, 
3  Ch.  D.  502;  Williamson  v.  Hine,  [1891]  1  Ch.  390";  Stubbs  v.  Slater,  [1910]  1  Ch. 
632. 

(zz)  Coles  V.  Trecothick,  9  Ves.  246;  Mpntesquieu  v.  Sandys,  18  Ves.  302;  Hay's 
Case,  L.  B.  10  Ch.  593. 

(a)  Tyrrell  v.  Bank  of  London,  10  H.  L.  C.  26. 

(b)  Lees  v.  Nuttall,  1  Euss.  &  Myl.  53;  Rochefoucauld  v.  Boustead,  [1897]  1  Ch. 
196.     See  In  re  Finlay,  Wilson  d  Co.  v.  Finlay,  [1913]  1  Ch.  565. 

(e)  Carter  v.  Palmer,  8  CI.  &  F.  657 ;  Lawless  v.  Mansfield,  1  Dr.  &  War.  557. 
(d)  Reed  v.  Norris,  2  Myl.  &  Cr.  361.      (e)  Bulkley  v.  Wilford,  2  CI.  &  P.  102. 
(/)  Leach  v.  Leach,  13  Sim.  804;  In  re  Evans;  Welch  v.  Channell,  26  Ch.  D.  58; 
Of.  Strangways  v.  Read,  [1898]  2  Ch.  419. 


134  EQUITY   JUEISPRDDBNCB.  [CH.    VII. 

on  the  part  of  the  guardian.  For,  in  all  such  cases,  the  relation  is  still 
considered  as  having  an  undue  influence  upon  the  mind  of  the  ward, 
and  as  virtually  subsisting,  especially  if  all  the  duties  attached  to  the 
situation  have  not  ceased ;  as,  if  the  accounts  between  the  parties  have 
not  been  fully  settled,  or  if  the  estate  still  remains  in  some  sort  under 
the  control  of  the  guardian  (g). 

§  320.  In  the  case  to  which  these  principles  have  been  applied, 
in  order  to  set  aside  grants  and  other  transactions  between  guardian 
and  ward,  two  circumstances  of  great  importance  have  generally 
concurred :  first,  that  the  grants  and  transactions  have  taken  place 
immediately  upon  the  ward's  attaining  age;  and,  secondly,  that  the 
former  influence  of  the  guardian  has  been  demonstrated  to  exist  to 
an  undue  degree;  or,  in  other  words,  that  the  parties  have  not  met 
upon  equal  terms.  If,  therefore,  the  relation  has  entirely  ceased,  not 
merely  in  name  but  in  fact,  and  if  sufficient  time  has  elapsed  to  put 
the  parties  in  complete  independence  as  to  each  other;  and  if  a  full 
and  fair  settlement  of  all  transactions  growing  out  of  the  relation  has 
been  made,  there  is  no  objection  to  any  bounty  or  grant  conferred  by 
the  ward  upon  his  guardian  (h).  Indeed,  in  such  cases,  it  is  only  the 
performance  of  a  highly  moral  duty,  recommended  as  well  by  law  as 
by  natural  justice. 

§  321.  In  the  next  place,  with  regard  to  the  relation  of  trustee 
and  cestui  que  trust,  or  rather  beneficiary,  or  fide-commissary,  as  we 
could  wish  the  person  beneficially  interested  might  be  called,  to  escape 
from  the  awkwardness  of  a  barbarous  modification  of  a  foreign 
idiom  (i).  In  this  class  of  cases  the  same  principles  govern  as  in  cases 
of  guardian  and  ward,  with  at  least  as  much  enlarged  liberality  of 
application,  and  upon  grounds  quite  as  comprehensive.  Indeed,  the 
cases  are  usually  treated  as  if  they  were  identical  (fe).  A  trustee  is 
never  permitted  to  partake  of  the  bounty  of  the  party  for  whom  he  acts, 

(g)  Hatch  v.  Hatch,  9  Ves.  292;  Revett  v.  Harvey,  1  Sim.  &  St.  502;  Wedderburn 
V.  Wedderburn,  4  M.  &  Cr.  41;  Kempson  v.  Ashbee,  L.  K.  10  Ch.  15. 

(h)  Hylton  v.  Hyltort,  2  Ves.  Sen.  547,  549. 

(t)  The  phrase  cestui  que  trust  is  a  barbarous  Norman  law  French  phrase ;  and  is 
so  ungainly  and  ill  adapted  to  the  English  idiom,  that  it  is  surprising  that  the  good 
sense  of  the  English  legal  profession  has  not  long  since  banished  it,  and  substituted 
some  phrase  in  the  English  idiom,  furnishing  an  analogous  meaning.  In  the  Roman 
law  the  trustee  was  commonly  called  hceres  fiduciarius ;  and  the  cestui  que  trust,  hceres 
fidei  commis sarins,  which  Dr.  Halifax  has  not  scrupled  to  translate  fide-committee 
(Halifax,  Anal,  of  Civil  Law,  ch.  6,  §  16,  p.  34 ;  id.  ch.  8,  §  2,  3,  pp.  45,  46).  I  prefer 
fide-commissary,  as  at  least  equally  within  the  analogy  of  the  English  language.  But 
beneficiary,  though  a  little  remote  from  the  original  meaning  of  the  word,  would  be  a 
very  appropriate  word,  as  it  has  not,  as  yet,  acquired  any  general  use  in  a  different 
sense.  Hceres  fidei  commissarius  was  sometimes  used  in  the  civil  law  to  denote  the 
trustee.  See  Vicat,  Vocab.  voce  Fidei  commissarius.  The  French  law  calls  the 
cestui  que  trust,  fidei  commissaire.  See  Perrifere,  Diet.  t>oce  fidei  commissaire.  Merlin, 
E^pertoire  voce  Substitution,  et  substitution  fidei  commissaire.  Dr.  Brown  uses  the 
word  fidei-commissary  (1  Brown,  Civil  Law,  190,  note). 

(fc)  Hatch  V.  Hatch,  9  Ves.  292,  296,  297;  Bulkely  v.  Wilford,  2  CI.  &  P.  102,  177 
to  183;  ante,  §  317,  320. 


§    320 322.]  CONSTRUCTIVE    FRAUD.  135 

except  under  circumstances  which  would  make  the  same  valid,  if  it 
were  a  ease  of  guardianship;  that  is,  a  trustee  may  purchase  of  his 
cestui  que  trust,  provided  there  is  a  distinct  and  clear  contract,  ascer- 
tained to  be  such,  after  a  jealous  and  scrupulous  examination  of  all 
the  circumstances;  and  it  is  clear  that  the  cestui  que  trust  intended 
that  the  trustee  should  buy ;  and  there  is  no  fraud,  no  concealment,  and 
no  advantage  taken  by  the  trustee  of  information  aequijred  by  him  as 
trustee.  But  it  is  difficult  to  make  out  such  a  case,  where  the  excep- 
tion is  taken,  especially  where  there  is  any  inadequacy  of  price  or  any 
inequality  in  the  bargain  (I).  And  therefore,  if  a  trustee,  though 
strictly  honest,  should  buy  for  himself  an  estate  of  his  cestui  que  trust, 
and  then  should  sell  it  for  more,  according  to  the  rules  of  a  court  of 
equity,  from  general  policy,  and  not  from  any  peculiar  imputation  of 
fraud,  he  would  be  held  still  to  remain  a  trustee  to  all  intents  and 
purposes,  and  not  to  be  permitted  to  sell  to  or  for  himself  (w). 

§  322.  But  we  are  not  to  understand,  from  this  last  language, 
that,  to  entitle  the  cestui  que  trust  to  relief,  it  is  indispensable  to  show 
that  the  trustee  has  made  some  advantage,  where  there  has  been  a 
purchase  by  himself;  and  that,  unless  some  advantage  has  been  made, 
the  sale  of  the  trustee  is  good.  That  would  not  be  putting  the  doctrine 
upon  its  true  ground,  which  is,  that  the  prohibition  arises  from  the 
subsisting  relation  of  trusteeship.  The  ingredient  of  advantage  made 
by  him  would  only  go  to  establish,  that  the  transaction  might  be  open 
to  the  strong  imputation  of  being  tainted  by  imposition  or  selfish 
cunning.  But  the  principle  applies,  however  innocent  the  purchase 
may  be  in  a  given  case.  It  is  poisonous  in  its  consequences.  The 
cestui  que  trust  is  not  bound  to  prove,  nor  is  the  court  bound  to  decide, 
that  the  trustee  has  made  a  bargain  advantageous  to  himself.  The 
fact  may  be  so;  and  yet  the  party  not  have  it  in  his  power  distinctly 
and  clearly  to  show  it.  There  may  be  fraud,  and  yet  the  party  not 
be  able  to  show  it.  It  is  to  guard  against  this  uncertainty  and  hazard 
of  abuse,  and  to  remove  the  trustee  from  temptation,  that  the  rule  does 
and  will  permit  the  cestui  que  trust  to  come  at  his  own  option,  and, 
without  showing  essential  injury,  to  insist  upon  having  the  experiment 
of  another  sale,  or  to  compel  the  trustee  to  reconvey  the  estate  to 
himself  on  repayment  of  the  purchase-money  with  4  per  cent,  interest. 
So  that  in  fact,  in  all  cases  where  a  purchase  has  been  made  by  a 
trustee  on  his  own  account  of  the  estate  of  his  cestui  que  trust, 
although  sold  at  public  auction,  it  is  in  the  option  of  the  cestui  que 
trust  to  set  aside  the  sale,  whether  bond  fide  made  or  not  (n).  So  a 
trustee  will  not  be  permitted  to  obtain   any  profit  or  advantage  to 

(!)  Coles  V.  Trecothick,  9  Ves.  246;  Benningfield  v.  Baxter,  12  App.  Cas.  167; 
Williams  v.  Scott,  [1900]  A.  C.  499. 

(to)  See  Fox  v.  Mackreth,  2  Bro.  C.  C.  400;  2  Cox,  158,  320;  4  Bro.  P.  C.  258. 

(n)  Campbell  v.  Walker,  5  Ves.  678;  13  Ves.  601;  Ex  parte  Lacey,  6  Ves.  625; 
Morse  v.  Royal,  12  Ves.  355. 


136  EQUITY   JURISPRUDENCE.  [CH.    VII. 

himself  in  managing  the  concerns  of  the  trust,  but  whatever  benefits 
or  profits  are  obtained  will  belong  exclusively  to  the  cestui  que  trust; 
but  the  trustee  is  entitled  to  retain  a  collateral  profit,  although  it  is 
acquired  by  him  in  consequence  of  his  appointment  (o).  In  short,  it 
may  be  laid  down  as  a  general  rule,  that  a  trustee  is  bound  not  to  do 
anything  which  can  place  him  in  a  position  inconsistent  with  the 
interests  of  the  trust,  or  which  has  a  tendency  to  interfere  with  his 
duty  in  discharging  it  (p).  And  this  doctrine  applies,  not  only  to 
trustees  strictly  so  called,  but  to  other  persons  standing  in  like 
situation ;  such  as  trustees  and  solicitors  of  a  bankrupt  estate,  who 
are  never  permitted  to  become  purchasers  at  the  sale  of  the  bankrupt 
estate  (g).  Further,  a  person  in  a  fiduciary  position  is  not  permitted 
to  purchase  up  the  debts  of  his  beneficiaries  on  his  own  account;  but, 
whatever  advantage  is  thus  derived  by  him  by  purchases  at  an  undue 
value,  is  for  the  common  benefit  of  the  estate  (?■).  Indeed,  the  doctrine 
may  be  more  broadly  stated ;  that  executors  or  administrators  will  not 
be  permitted,  under  any  circumstances,  to  derive  direct  personal  benefit 
from  the  manner  in  which  they  transact  the  business,  or  manage  the 
assets,  of  the  estate.  And  if  a  trustee  misapply  the  funds  of  his 
cestui  que  ti'ust  or  beneficiary,  and  purchase  a  judgment  or  other 
security  therewith,  the  latter  has  an  election  to  take  such  judgment  or 
security,  or  to  call  upon  the  trustee  to  make  good  the  original  fund. 

§  323.  There  are  many  other  cases  of  persons,  standing,  in  regard 
to  each  other,  in  the  like  confidential  relations,  in  which  similar 
principles  apply.  Among  these  may  be  enumerated  the  cases  which 
arise  from  the  relation  of  penitent  and  spiritual  adviser  (s),  and  per- 
haps of  master  and  servant  (i).  But  it  would  occupy  too  much  space 
to  go  over  them  at  large ;  and  most  of  them  are  resolvable  into  the 
principles  already  commented  on.  On  the  whole,  the  doctrine  may 
be  generally  stated  that  wherever  confidence  is  reposed,  and  one  party 
has  it  in  his  power,  in  a  secret  manner  for  his  own  advantage,  to 
sacrifice  those  interests  which  he  is  bound  to  protect,  he  will  not  be 
permitted  to  hold  any  such  advantage  («)• 

§  323  (a.)  Since  the  author  wrote,  a  pertinent  illustration  has  been 
afforded  by  the  case  of  joint  stock  companies.     Generally  speaking,  a 


(o)  Kirkman  v.  Booth,  11  Beav.  273;  In  re  Barber,  Burgess  v.  Vinnicorne,  34 
Ch.  D.  77;  In  re  Dover  Coalfields  Extension,  Lim.,  [1908]  1  Ch.  65;  In  re  Lewis, 
Lewis  V.  Lewis,  103  L.  T.  495;  Bath  v.  Standard  Land  Co.,  [1911]  2  Ch.  618. 

(p)  Hamilton  v.  Wright,  9  CI.  &  F.  111. 

(g)  Ex  parte  Lacey,  6  Ves.  625;  Ex  parte  James,  8  Yes.  337;  Ex  parte  Bennett, 
10  Ves.  381. 

(r)  Pooley  v.  Quilter,  2  De  G.  &  J.  327. 

(s)  Huguenin  v.  Baseley,  14  Ve9.  273;  Allcard  v.  Skinner,  36  Ch.  D.  145;  Morley 
V.  Loughman,  [1893]  1  Ch.  736. 

(t)  Nantes  v.  Corrock,  9  Ves.  182;  Consett  v.  Bell,  1  Y.  &  C.  Ch.  569;  Bate  v. 
Bank  of  England,  9  Jur.  545;  Gibson  v.  Russell,  2  Y.  &  C.  Ch.  104. 

(u)  Dent  V.  Bennett,  4  M.  &  Cr.  269. 


§  323 326.]  CONSTRUCTIVE  FRAUD.  137 

director  stands  in  a  fiduciary  position  to  the  company  (x),  and  cannot 
retain  a  profit  made  by  him,  but  the  constitution  of  the  company  may 
permit  him  to  do  so  {y},  and  even  to  override  the  wishes  of  the 
majority  of  the  shareholders  (2),  and  in  any  event  he  can  exercise  his 
individual  rights  as  a  corporator  (a).  Promoters  are  also  bound  to  the 
fullest  disclosure  (b).  The  term  promoter  has  been  defined  as  "  a  term 
not  of  law,  but  of  business,  usefully  summing  up  in  a  single  word 
a  number  of  business  operations  familiar  to  the  commercial  world  by 
which  a  company  is  generally  brought  into  existence  "  (c). 

§  324.  The  case  of  principal  and  surety  may  also,  as  a  striking 
illustration  of  this  doctrine,  be  briefly  referred  to.  The  contract  of 
suretyship  imports  entire  good  faith  and  confidence  between  the  parties 
in  regard  to  the  whole  transaction.  Any  concealment  of  material 
facts,  or  any  express  or  implied  misrepresentation  of  such  facts,  or 
any  undue  advantage  taken  of  the  surety  by  the  creditor,  either  by 
surprise  or  by  withholding  proper  information,  will  undoubtedly 
furnish  a  sufficient  ground  to  invalidate  the  contract.  Upon  the  same 
ground,  the  creditor  is,  in  all  subsequent  transactions  with  the  debtor, 
bound  to  equal  good  faith  to  the  surety.  If  any  stipulations,  therefore, 
are  made  between  the  creditor  and  the  debtor  which  are  not  com- 
municated to  the  surety,  and  are  inconsistent  with  the  terms  of  his 
contract,  or  are  prejudicial  to  his  interests  therein,  they  will  operate 
as  a  virtual  discharge  of  the  surety  from  the  obligation  of  his  con- 
tract (d).  And,  on  the  other  hand,  if  any  stipulations  for  additional 
security  or  other  advantages  are  obtained  between  the  creditor  and  the 
debtor,  the  surety  is  entitled  to  the  fullest  benefit  of  them  (e). 

§  325.  Indeed,  the  proposition  may  be  stated  in  a  more  general 
form ;  that  if  a  creditor  does  any  act  injurious  to  the  surety  or  incon- 
sistent with  his  rights,  or  if  he  omits  to  do  any  act,  when  required  by 
the  surety,  which  his  duty  enjoins  him  to  do,  and  the  omission  proves 
injurious  to  the  surety,  in  all  such  cases  the  latter  will  be  discharged, 
and  he  may  set  up  such  conduct  as  a  defence  to  any  suit  brought 
against  him  in  equity. 

§  326.  It  is  upon  this  ground,  that  if  a  creditor,  without  any  com- 
munication with  the  surety,  and  assent  on  his  part,  should  afterwards 
enter  into  any  new  contract  with  the  principal,  inconsistent  with  the 


(x)  Imperial  Mercantile   Credit  Association   v.    Coleman,   L.   E.   6  H.   L.   189 ; 
Cavendish  Bentinck  v.  Fenn,  12  App.  Gas.  652. 

(y)  Costa  Rica  Ry.  v.  Forwood,  [1901]  1  Ch.  746. 
(z)  Quin  &  Axtens,  Ltd.  v.  Salmon,  [1909]  A.  C.  442. 

(a)  North  West  Transportation  Co.  v.  Beatty,  12  App.  Gas.  589. 

(b)  Erlanger  v.  New  Sombrero  Co.,  3  App.  Gas.  1218;  Emma  Silver  Mining  Co.  v. 
Orard,  11  Gh.  D.  918;  Lagunas  Nitrate  Co.  v.  Lagunas  Syndicate,  [1899]  2  Ch.  392. 

(c)  Bowen,  J.,  Waley  Bridge  Co.  v.  Green,  5  Q.  B.  D.  109;  see  also  Lindley,  L.J., 
Lydney  *  Wigpool  Iron  Ore  Co.  v.  Bird,  33  Ch.  D.  85. 

(d)  Pidcoek  v.  Bishop,  3  B.  &  C.  605 ;  Bonar  v.  Macdonald,  3  H.  L.  C.  226. 

(e)  Pearl  v.  Deacon,  1  De  G.  &  J.  461. 


138  EQUITY   JURISPRUDENCE.  [CH.    VII. 

former  contract,  or  should  stipulate,  in  a  binding  manner,  upon  a 
sufficient  consideration,  for  further  delay  and  postponement  of  the 
day  of  payment  of  the  debt,  that  will  operate  in  equity  as  a  discharge 
of  the  surety  (/).  But  it  is  not  every  alteration  of  his  position  by  the 
act  of  the  creditor,  which  will  discharge  the  surety.  To  have  this, 
effect,  the  alteration  must  be  such  as  interferes  for  a  time  with  his 
remedies  against  the  principal  debtor  (g).  And  where  the  creditor,  in, 
making  the  arrangement  with  the  principal  to  give  time,  or  other- 
wise vary  the  strict  enforcement  of  the  letter  of  the  contract,  reserves, 
his  rights  against  the  surety,  although  without  communicating  this 
fact  to  the  surety,  it  will  not  operate  as  a  release  of  the  surety  (h). 
But  there  is  no  positive  duty  incumbent  on  the  creditor  to  prosecute 
measures  of  active  diligence ;  and,  therefore,  mere  delay  on  his  part 
(at  least  if  some  other  equity  does  not  interfere),  unaccompanied  by 
any  valid  contract  for  such  delay,  will  not  amount  to  laches,  so  as  to 
discharge  the  surety  (i).  Oil  the  other  hand,  if  the  creditor  has  any 
security  from  the  debtor,  and  he  parts  with  it,  without  communication 
with  the  surety,  or  by  his  gross  negligence  it  is  lost,  that  will  operate, 
at  least  to  the  value  of  the  security,  to  discharge  the  surety  (fe).  And 
even  where  done  under  a  misapprehension,  the  consequences  must 
fall  upon  the  person  who  did  the  act  (I).  It  is  immaterial  in  what 
character  the  parties  contracted  originally.  The  moment  the  creditor 
has  notice  that  the  relation  of  the  parties  inter  se  is  that  of  principal 
and  surety,  he  must,  in  his  subsequent  dealings,  respect  the  true 
contract  between  the  other  parties  {m). 

§  327.  Sureties  also,  are  entitled  to  come  into  a  court  of  equity, 
after  a  debt  has  become  due,  to  compel  the  debtor  to  exonerate  them 
from  their  liability,  by  paying  the  debt;  or  sue  in  the  creditor's  name, 
and  collect  the  debt  from  the  principal,  if  he  will  indemnify  the  creditor 
against  the  risk,  delay,  and  expense  of  the  suit  («.).  And  they  have 
a  clear  right,  upon  paying  the  debt  to  the  principal,  to  be  substituted 
in  the  place  of  the  creditor,  as  to  all  securities  held  by  the  latter  for 
the  debt,  and  to  have  the  same  benefit  that  he  would  have  therein  (o). 
This,  however,  is  not  the  place  to  consider  at  large  the  general  rights 

(/)  Rees  V.  Berrington,  2  Yes.  Jun.  540;  Bonar  v.  Macdonald,  3  H.  L.  C.  226  j 
Perry  v.  National  Provincial  Bank  of  England,  [1910]  1  Ch  464. 

(g)  Tucker  v.  Laing,  2  K.  &  J.  745. 

ih)  Webb  V.  Hewitt,  3  K.  &  J.  338;  Green  v.  Wymer,  L.  E.  4  Ch.  204. 

(i)  Wright  v.  Simpson,  6  Ves.  734;  Heath  v.  Hay,  1  Y.  &  Jer.  434;  Carter  v. 
White,  25  Ch.  D.  666. 

(k)  Mayhew  v.  Crickett,  2  Swanst.  185,  191,  and  note  (a);  Stirling  v.  Forrester, 
2  Bli.  575. 

(0  Lord  Eldon,  in  Ex  parte  Wilson,  11  Ves.  410. 

(m)  Rouse  v.  Bradford  Banking  Co.,  [1894]  A.  C.  586. 

(n)  Wooldridge  v.  Norris,  L.  E.  6  Eq.  410;  Ascherman  v.  Tredegar  Dry  Dock  Co., 
[1909]  2  Ch.  401. 

(o)  Bowker  v.  Bule,  1  Sim.  N.  S.  29;  Berridge  v.  Berridge,  44  Ch.  D  168-  Gee  v 
Liddell,  [1913]  2  Ch,  62, 


§  327 — 331.]  CONSTRUCTIVE  FRAUD.  139 

and  duties  of  persons  standing  in  the  relation  of  creditors,  debtors,  and 
sureties;  and  we  shall  have  occasion  again  to  advert  to  the  subject, 
when  considering  the  marehalling  of  securities  in  favour  of  sureties  (p). 

§  328.  Let  us  now  pass  to  the  consideration  of  the  third  class  of 
constructive  frauds,  combining,  in  some  degree,  the  ingredients  of  the 
others,  but  prohibited  mainly,  because  they  unconseientiously  com- 
promit,  or  injuriously  affect,  the  private  rights,  interests,  or  duties  of 
the  parties  themselves,  or  operate  substantially  as  frauds  upon  the 
private  rights,  interests,  duties,  or  intentions  of  third  persons. 

§  329.  With  regard  to  this  last  class,  much  that  has  been  already 
stated,  under  the  preceding  head  of  positive  or  actual  fraud,  as  to 
unconscionable  advantages,  overreaching,  imposition,  undue  influence, 
and  fiduciary  situations,  may  well  be  applied  here,  although  certainly 
with  diminished  force,  as  the  remarks  there  made  did  not  turn  ex- 
clusively upon  constructive  fraud. 

§  330.  To  this  same  class  may  also  be  referred  many  of  the  cases 
arising  under  the  Statute  of  Frauds,  which  requires  certain  contracts 
to  be  in  writing,  in  order  to  give  them  validity,  or  to  be  proved  by 
written  evidence.  In  the  construction  of  that  statute,  a  general  prin- 
ciple has  been  adopted,  that,  as  it  is  designed  as  a  protection  against 
fraud,  it  shall  never  be  allowed  to  be  set  up  as  a  protection  and  support 
of  fraud.  The  Court  of  Chancery,  in  its  later  days,  disclaimed,  and 
the  High  Court  disclaims,  any  jurisdiction  to  grant  relief  upon  the 
ground  that  there  is  no  writing ;  but  the  court  has  granted  relief  where 
a  party  has  by  fraud  prevented  written  evidence  being  produced,  as  if 
an  heir  should  prevent  an  ancestor  executing  a  will,  as  the  statute 
required,  under  sections  which  are  now  replaced  by  the  Wills  Act, 
1837  (q) ;  or  if  a  party  to  a  contract  should  obtain  the  suppression  of 
a  written  document  by  fraud  or  imposition  (r) ;  and  there  may  be  other 
instances,  but  short  of  fraud  there  is  nothing  inequitable  in  relying  upon 
an  unrepealed  statute   (s). 

§  331.  And,  here;  we  may  apply  the  remark,  that  the  proper 
jurisdiction  of  courts  of  equity  is  to  take  every  one's  act,  according 
to  conscience,  and  not  to  suffer  undue  advantage  to  be  taken  of  the 
strict  forms  of  law,  or  of  positive  rules.  Hence  it  is,  that,  even  if 
there  be  no  proof  of  fraud  or  imposition;  yet,  if  upon  the  whole  cir- 
cumstances, the  contract  appears  to  be  grossly  against  conscience,  or 
grossly  unreasonable  and  oppressive,  courts  of  equity  will  sometimes 
interfere  and  grant  relief  (t) ;  although  they  certainly  are  very  cautious 
of  interfering,  unless  upon  very  strong  circmstances.  But  the  mere 
fact  that  the   bargain  is   a   very  hard   or  unreasonable   one,   is   not, 

(p)  Post,  §  499.  502,  637. 

(q)  Viscountess  Montacute  v.  Maxwell,  1  P.  Wms.  616. 

(r)  Mallet  v.  Halfpenny,  cited  Free.  Ch.  at  p.  404. 

(s)  Wood  V.  Midgley,  5  De  G.  M.  &  G.  41. 

(t)  Bowes  V.  Heaps,  3  Ves.  &  B.  117. 


140  EQUITY   JURISPRUDENCE.  [CH.    VII. 

generally,  sufficient,  per  se,  to  induce  these  courts  to  interfere  (m). 
And,  indeed,  it  will  be  found  that  there  are  very  few  cases  not  infected 
with  positive  or  actual  fraud,  in  which  they  do  interfere,  except 
where  the  parties  stand  in  some  very  peculiar  predicament,  and  in 
some  sort,  under  the  protection  of  the  law,  from  age,  or  character,  or 
relationship  (a;). 

§  333.  But  the  great  class  of  cases,  in  which  relief  is  granted,  under 
this  head,  is  where  the  contract  or  other  act  is  substantially  a  fraud 
upon  the  rights,  interests,  duties,  or  intentions  of  third  persons.  And, 
here,  the  general  rule  is,  that  particular  persons,  in  contracts,  and 
other  acts,  shall  not  only  transact  bond  fide  between  themselves  but 
•shall  not  transact  malA  fide  in  respect  to  other  persons,  who  stand  in 
such  a  relation  to  either,  as  to  be  afiected  by  the  contract  or  the  con- 
sequences of  it  (j/).  And,  as  the  rest  of  mankind,  besides  the  parties 
contracting,  are  concerned,  the  rule  is  properly  said  to  be  governed 
by  public  utility  (z). 

§  334.  It  is  upon  this  ground,  that  relief  has  been  constantly 
.granted,  in  what  are  called  catching  bargains  with  heirs,  reversioners, 
and  expectants,  during  the  life  of  their  parents  or  other  ancestors  (zz). 
Many,  and,  indeed,  most  of  these  cases  (as  has  been  pointedly  re- 
marked by  Lord  Hardwicke),  "  have  been  mixed  cases,  compounded 
of  almost  every  species  of  fraud ;  there  being  sometimes  proof  of  actual 
fraud,  which  is  always  decisive.  There  is  always  fraud  presumed  or 
inferred  from  the  circumstances  or  conditions  of  the  parties  contracting, 
from  weakness  on  one  side  and  usury  on  the  other,  or  extortion  or 
advantage  taken  of  that  weakness.  There  has  always  been  an  appear- 
ance of  fraud  from  the  nature  of  the  bargain,  even  if  there  be  no  proof 
of  any  circumvention,  but  merely  from  the  intrinsic  unconscionabl&ness 
of  the  bargain.  In  most  of  these  cases  have  concurred  deceit  and  illu- 
sion on  other  persons,  not  privy  to  the  fraudulent  agrement.  The 
father,  ancestor,  or  relation  from  whom  was  the  expectation  of  the 
estate,  has  been  kept  in  the  dark.  The  heir  or  expectant  has  been  kept 
from  disclosing  his  circumstances,  and  resorting  to  them  for  advice, 
which  might  have  tended  to  his  relief,  and  also  reformation.  This  mis- 
leads the  ancestor,  who  has  been  seduced  to  leave  his  estate,  not  to  his 
heir  or  family,  but  to  a  set  of  artful  persons,  who  have  divided  the  spoil 
beforehand  "  (a). 

§  335.  Strong  as  this  language  may  appear,  it  is  fuUy  borne  out 
hj  the  general  complexion  of  the  cases  in  which  relief  has  been  afforded. 

(u)  White  v.  Damon,  7  Ves.  30 ;  Harrison  v.  Guest,  i  De  G.  M.  &  Gr.  424. 

(x)  See  Huguenin  v.  Baseley,  14  Ves.  271;  Davis  v.  Duke  of  Marlborough,  2 
■Swanst.  149,  and  note  (a);  O'Rorke  v.  BoUnghroke,  2  App.  Caa.  822. 

(y)  Per  Lord  Hardwicke,  in  Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sen.  156,  157. 

(z)  Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sen.  156,  157. 

{zz)  Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sen.  125 ;  Nevill  v.  Snelling,  15  Ch.  D. 
679. 

(o)  Lord  Hardwicke,  in  Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sen.  157. 


§  333 — 335a-.]  constructive  fraud.  141 

Actual  fraud,  indeed,  has  not  unfrequently  been  repelled  (b).  Belief 
is  granted,  not  only  in  the  case  of  sales  (c),  and  mortgages  (d),  where 
the  security  is  tangible,  but  to  post  obit  bonds  (e),  and  also  to  those 
cases  where  the  lender  hoped  to  be  able  "  to  put  the  screw  on  "  by 
enforcing  his  security  (/).  Next,  the  parties  seeking  relief  need  not  be 
young,  rash,  -or  dissolute ;  parties  aged  thirty-eight  and  also  thirty  years 
respectively  have  successfully  invoked  the  rule  (g).  "It  is  not  every 
bargain  which  distress  may  induce  one  man  to  offer,  that  another  is  at 
liberty  to  accept  "  {h).  The  jurisdiction  to  relieve  against  improvidence 
is  saved  by  section  1,  sub-section  6  of  the  Moneylenders  Act,  1900, 
which,  as  amended  by  the  Moneylenders  Act,  1911,  enables  the  court 
to  grant  extended  relief  in  transactions  with  moneylenders  (i). 

§  335a.  The  doctrines  held  by  courts  of  equity  as  to  the  require- 
ments necessary  to  make  a  sale  of  reversionary  interests  valid,  were  so 
severe  that  it  became  needful  for  the  legislature  to  interfere,  and  accord- 
ingly, the  Sales  of  Eeversions  Act,  1868  (31  &  32  Vict.  c.  4)  was  passed, 
which  enacted  that  "  no  purchase,  made  bond  fide  and  without  fraud 
or  unfair  dealing,  of  any  reversionary  interest  in  real  or  personal  estate 
should  thereafter  be  opened  or  set  aside  merely  on  the  ground  of 
undervalue  ' '  (section  1) ;  and  it  was  provided  further  that  under  the 
word  "  purchase  "  should  be  included  every  kind  of  contract,  con- 
veyance, or  assignment,  under  or  by  which  any  beneficial  interest  in 
any  kind  of  property  should  be  acquired.  Now  it  will  be  observed  that 
although  undervalue  is  not  per  se  sufficient,  it  may  yet  be  used  as 
evidence  of  unfair  dealing  upon  which  the  court  of  chancery  based  its 
title  to  relief  (k).  In  addition  to  this  there  must  be  no  fraud  or  unfair 
dealing.  In  relation  to  this  enactment  it  has  been  said  that  "  these 
changes  of  the  law  have  in  no  degree  whatever  altered  the  onus 
probandi  in  those  cases,  which,  according  to  the  language  of  Lord 
Hardwicke,  raise,  '  from  the  circumstances  or  conditions  of  the  parties 
contracting  (weakness  on  one  side,  usury  on  the  other,  or  extortion, 
or  advantage  taken  of  that  weakness),  a  presumption  of  fraud.'  Fraud 
does  not  here  mean  deceit  or  circumvention;  it  means  an  uncon- 
scientious use  of  the  power  arising  out  of  these  circumstances  and 
conditions;  and  when  the  relative  position  of  the  parties  is  such  as 
prima  faeie  to  raise  this  presumption,  the  transaction  cannot  stand 
unless   the   person   claiming   the   benefit   of   it  is   able    to   repel   the 

(b)  Peacock  v.  Evans,  16  Ves.  512 ;  Bowes  v.  Heaps,  3  Ves.  &  B.  117. 

(c)  Baker  v.  Monk,  i  De  G.  J.  &  S.  388;  Fry  v.  Lane,  40  Ch.  D.  312;  Rees  v.  De 
Bernardy,  [1896]  2  Ch.  437. 

(d)  Bromley  v.  Smith,  26  Beav.  644;  James  v.  Kerr,  40  Ch.  D.  449. 

(e)  Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sen.  125. 
(/)  Nevill  V.  SnelUng,  15  Ch.  D.  679. 

(g)  Bromley  v.  Smith,  26  Beav.  644;  Brenchley  v.  Higgins,  70  L.  J.  Ch.  788. 

(h)  Grant  M.E.,  Bowes  v.  Heaps,  3  Ves.  &  B.  117. 

(i)  Samuel  v.  Newbold,  [1906]  A.  C.  461. 

(k)  O'Rorke  v.  Bolingbroke,  2  App.  Cas.  814 ;  Fry  v.  Lane,  40  Ch.  D.  312. 


142  EQUITY   JURISPRUDENCE.  [CH.    VII. 

presumption  by  contrary  evidence  proving  it  to  have  been,  in  point  of 
fact,  '  fair,  just,  and  reasonable.'  "  (l).  Formerly,  a  sale  by  auction 
was  prima  facie  evidence  of  the  true  value,  vs'hile  a  sale  by  private 
contract  vi'as  deemed  to  afford  no  criterion  of  vedue  (m). 

§  3356.  It  should  be  further*  observed,  that  if  the  expectant  heir 
or  other  person  similarly  defrauded  be  an  infant,  no  question  as  to  the 
validity  of  contracts  for  the  repayment  of  money  lent  to  them  can 
arise,  for  by  the  Infants'  Belief  Act,  1874  (37  &  88  Vict.  c.  62),  it  is 
enacted  that  all  contracts,  whether  by  speciality  or  by  simple  contract, 
thenceforth  entered  into  by  infants  for  the  repayment  of  money 
lent  or  to  be  lent,  or  for  goods  supplied  or  to  be  supplied  (other  than 
contracts  for  necessaries),  shall  be  absolutely  void. 

§  339.  The  whole  doctrine  of  courts  of  equity,  with  respect  to 
expectant  heirs  and  reversioners,  and  others  in  a  like  predicament, 
assumes  that  the  one  party  is  defenceless,  and  is  exposed  to  the 
demands  of  the  other  under  the  pressure  of  necessity.  It  assumes, 
also,  that  there  is  a  direct  or  implied  fraud  upon  the  parent  or  other 
ancestor,  who,  from  ignorance  of  the  transaction,  is  misled  into  a  false 
confidence  in  the  disposition  of  his  property.  Hence  it  should  seem, 
that  one  material  qualification  of  the  doctrine  is,  the  existence  of 
such  ignorance.  If,  therefore,  the  transaction  has  been  fully  made 
known  at  the  time  to  the  parent,  or  other  person  standing  in  loco 
parentis  {n),  as,  for  example,  to  the  person  from  whom  the  spes  su&ces- 
sionis  is  entertained,  or  after  the  expiration  of  whose  present  estate 
the  reversionary  interest  is  to  become  vested  in  possession,  and  it 
is  not  objected  to  by  him,  the  extraordinary  protection,  generally 
afforded  in  cases  of  this  sort  by  courts  of  equity,  will  be  withdrawn. 
A  fortiori,  it  will  be  withdrawn,  if  the  transaction  is  expressly 
sanctioned  or  adopted  by  such  parent  or  other  person  standing  in 
loco  parentis  (o).  And  it  has  been  strongly  said,  that  it  would  be 
monstrous  to  treat  the  contracts  of  a  person  of  mature  age  as  the 
acts  of  an  infant,  when  his  parent  was  aware  of  his  proceedings,  and 
did  nothing  to  prevent  them.  The  parent  might  thus  lie  by,  and 
suffer  his  son  to  obtain  the  assistance  which  he  ought  himself  to  have 
Tendered,  and  then  only  stand  forward  to  aid  him  in  rescinding 
engagements,  which  he  had  allowed  him  to  make,  and  to  profit  by  (p). 

§  340.  The  other  qualification  of  the  doctrine  is  not  less  important. 
The  contract  must  be  made  under  the  pressure  of  some  necessity ; 
for  the  main  ground  of  the  doctrine  is,  the  pressure  upon  the  heir, 

(l)  Earl  of  Aylesford  v.  Morris,  L.  E.  8  Ch.  484;  Brerwhley  v.  Higgins,  70 
li.  J.  Ch.  788. 

im)  Shelly  v.  Nash,  3  Madd.  232;  Earl  of  Aldborough  v.  Trye,  7  CI.  &  F.  436; 
Jn  re  Slater's  Trusts,  11  Ch.  D.  227. 

(n)  Tyler  v.  Yates,  L.  R.  6  Ch.  665. 

(o)  King  v.  Hamlet,  4  Sim.  223;  a.c.  2  Myl.  &  K.  456;  O'Rorke  v.  Bolingbroke, 
2  App.  Cas.  814. 

(p)  King  v.  Hamlet,  2  Myl.  &  K.  436 ;  s.c.  4  Sim.  182. 


§  335b — 343.]  constructive  fraud.  148 

or  the  distress  of  the  party,  dealing  with  his  expectancies,  who  is, 
therefore,  under  strong  temptations  to  make  undue  sacrifices  of 
his  future  interests  (g).  Both  of  these  qualifications  need  not,  indeed, 
in  all  cases  and  under  all  circumstances,  concur  to  justify  relief.  It 
may  be  sufficient,  that  either  of  them  forms  so  essential  an  ingredient 
in  the  case  as  to  give  rise  to  a  just  presumption  of  constructive 
fraud  (r). 

§  841.  The  doctrine  of  courts  of  equity  upon  this  subject,  if  it  has 
not  been  directly  borrowed  from,  does  in  no  small  degree  follow  out 
the  policy  of,  the  Eoman  law  in  regard  to  heirs  and  expectants.  By 
the  Macedonian  decree  (so  called  from  the  name  of  the  usurer  who 
gave  occasion  to  it),  all  obligations  of  sons,  contracted  by  the  loan  of 
money,  while  they  were  living  in  subjection  to  the  paternal  authority 
and  jurisdiction,  were  declared  null  without  distinction.  And  they 
were  not  allowed  to  be  valid  even  after  the  death  of  the  father;  not 
so  much  out  of  favour  to  the  son  as  out  of  odium  to  the  creditor,  who 
had  made  an  unlawful  loan,  which  was  vicious  in  its  origin  as  well  as 
in  its  example.  "  Verba  Senatus  consulti  Macedoniani  hsec  sunt,  etc. 
Placere,  ne  cui,  qui  filiofamilias  mutuam  pecuniam  dedisset,  etiam 
post  mortem  parentis  ejus,  cujus.in  potestate  fuisset,  actio  pe,titioque 
daretur;  ut  scirent,  qui  pessimo  exemplo  fsenerarent,  nullius  posse 
filiifamilias  bonum  nomen,  expectata  patris  morte,  fieri  "  (s).  Upon 
this  decree  Lord  Hardwicke  has  remarked  that  the  senate  and  law- 
makers in  Eome  were  not  so  weak  as  not  to  know  that  a  law  to 
restrain  prodigality,  to  prevent  a  son's  running  in  debt  in  the  life  of 
his  father,  would  be  vain  in  many  cases.  Yet  they  made  laws  to  this 
purpose,  namely,  the  Macedonian  decree  already  mentioned,  happy  if 
they  could  in  some  degree  prevent  it;  Est  aliquod  prodire  terms  [t] 

§  342.  It  is  upon  similar  principles  that  post  obit  bonds,  and  other 
securities  of  a  like  nature,  are  set  aside  when  made  by  heirs  and 
expectants.  A  post  obit  bond  is  an  agreement,  on  the  receipt  of 
money  by  the  obligor,  to  pay  a  larger  sum,  exceeding  the  legal  rate 
of  interest,  upon  the  death  of  a  person  from  whom  he  (the  obligor) 
has  some  expectations,  if  he  should  survive  him.  Such  bonds  operate 
as  a  virtual  fraud  upon  the  bounty  of  the  ancestor,  and  disappoint  his 
intentions,  generally  by  design,  aad  usually  in  the  event  («). 

§  348.  A  case  of  a  very  similar  character  is  a  contract  by  which 
an  expectant  heir,  upon  the  present  receipt  of  a  sum  of  money, 
promises  to  pay  over  to  the  lender  a  large,  though  an  uncertain 
proportion,  of  the  property  which  might  descend  to  him  upon  the 
death  of  his  parent  or  other  ancestor,  if  he  should  survive  him.     It  is 

(g)  King  v.  Hamlet,  i  Sim.  182;  s.c.  2  Myl.  &  K.  456. 
(r)  Earl  of  Portmore  v.  Taylor,  4  Sim.  182. 
(s)  Dig.  Lib.  14,  tit.  6,  f.  1. 

(t)  Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sen.  125,  158. 
(«)  Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sen.  125. 


144  EQUITY   JUEISPEDDENCE.  [CH.    VII. 

a  fraud  upon  such  parent  or  other  ancestor,  and  introductive  of  the 
worst  public  mischiefs;  for  the  parent  or  ancestor  is  thereby  induced 
to  submit  in  ignorance  to  the  disposition  which  the  law  makes  of  his 
estate,  upon  the  supposition  that  it  will  go  to  his  heir,  when  in  fact 
a  stranger  is,  against  his  will,  made  the  substituted  heir.  It  might 
be  very  different  if  there  was  a  fair,  although  a  secret,  agreement 
between  all  the  heirs  to  share  the  estate  equally;  for  such  an  agree- 
ment would  have  a  tendency  to  suppress  all  attempts  of  one  or  more 
to  overreach  the  others,  as  well  as  to  prevent  all  exertions  of  undue 
influence   (a;). 

§  344.  From  what  has  been  already  said,  it  follows,  as  a  natural 
inference,  that  contracts  of  this  sort  are  not  in  all  cases  utterly  void; 
but  they  are  subject  to  all  real  and  just  equities  between  the  parties, 
so  that  there  shall  be  no  inadequacy  of  price  and  no  inequality  of 
advantages  in  the  bargain.  If  in  other  respects  these  contracts  are 
perfectly  fair,  courts  of  equity  will  permit  them  to  have  effect,  as 
securities  for  the  sum  to  which  ex  sequo  et  bono  the  lender  is  entitled ; 
for  he  who  seeks  equity  must  do  equity ;  and,  therefore,  relief  will  not 
be  granted  upon  such  securities,  except  upon  equitable  terms  {y). 

§  345.  And  where,  after  the  contemplated  events  have  occurred, 
and  the  pressure  of  necessity  has  been  removed,  the  party  freely  and 
deliberately,  and  upon  full  information,  confirms  the  precedent 
contract,  or  other  treinsaction,  or  delays  unduly  to  seek  the  assistance 
of  the  court,  courts  of  equity  will  generally  hold  him  bound  thereby ; 
for  if  a  man  is  fully  informed,  and  acts  with  his  eyes  open,  he  may, 
by  a  new  agreement,  bar  himself  from  relief  (a).  But  if  the  party 
is  still  acting  under  the  pressure  of  the  original  transaction  or  the 
original  necessity,  or  if  he  is  still  under  the  influence  of  the  original 
transaction,  and  of  the  delusive  opinion  that  it  is  valid  and  binding 
upon  him,  then,  and  under  such  circumstances,  courts  of  equity  will 
hold  him  not  barred  from  relief  by  any  such  confirmation  (a). 

§  846.  Similar  principles  will  govern  in  cases  where  the  heir  or 
other  expectant  is  relieved  from  his  necessities,  and  becomes  opposed 
to  the  person  with  whom  he  has  been  dealing,  and  seeks  to  repudiate 
the  bargain.  In  such  eases  he  must  not  do  any  act  by  which  the  rights 
or  property  of  the  other  party  will  be  injuriously  affected  after  he  is 
thus  deemed  to  be  restored  to  his  general  capacity.  If  he  does,  he 
becomes  affected  with  the  ordinary  rule  which  governs  in  other  cases, 

(x)  Wethered  v.  Wethered,  2  Sim.  183;  Hyde  v.  White,  5  Sim.  524;  Higgins  v. 
Hill,  56  L.  T.  426.     See  Cook  v.  Field,  15  Q.  B.  460. 

(j)  Earl  of  Aldborough  v.  Trye,  7  CI.  &  F.  436;  Benyon  v.  Fitch,  35  Beav.  570; 
Earl  of  Aylesford  v.  Morris,  L.  E.  8  Ch.  484. 

(«)  Earl  of  Chesterfield  v.  Janssen,  2  Ves.  Sen.  125 ;  Sibbering  v.  Earl  of 
Balcarres,  3  De  G.  &  Sm.  735;  Lord  v.  Jeffkins,  35  Beav.  1;  Dimsdale  v.  Dimsdale, 
3  Drew.  556. 

(a)  Savery  v.  King,  5  H.  L.  C.  627 ;  Earl  of  Aylesford  v.  Morris,  L.  E.  8  Ch.  484 ; 
Moxon  V.  Payne,  L.  E.  8  Ch.  881. 


§  344 — 349.]  CONSTRUCTIVE  FRAUD.  145 

and  forbids  a  party  to  repudiate  a  dealing,  and  at  the  same  time  to 
avail  himself  fully  of  all  the  rights  and  powers  resulting  therefrom, 
as  if  it  were  completely  valid  (b). 

§  347.  Even  the  sale  of  a  post  obit  bond  at  public  auction  will  not 
necessarily  give  it  validity,  or  free  it  from  the  imputation  of  being 
obtained  under  the  pressure  of  necessity.  For  the  circumstances 
may  be  such  as  to  establish  that  the  expectant  is  acting  without  any 
of  the  usual  precautions  to  obtain  a  fair  price,  and  is  in  great  distress 
for  money,  and  is  really  in  the  hands,  and  under  the  control  of  those 
who  choose  to  become  bidders  for  the  purpose  of  fleecing  him  (c). 
The  case  is  not  like  the  ease  of  an  ordinary  sale  of  a  reversion  at 
public  auction,  where  the  usual  precautions  are  taken;  for  there  it 
may  be  perfectly  proper  not  to  require  the  purchaser  to  show  that 
he  has  given  the  full  value  (d).  "Where  the  sale  is  public,  and  free 
and  fair,  it  may  be  justly  presumed  that  the  fair  market-price  is 
obtained,  and  there  seems  no  reason  to  call  in  question  its  general 
validity ;  but  it  should  be  specially  impeached.  In  sales  of  reversions 
at  public  auction,  there  is  not  usually  any  opportunity,  as  there  is 
upon  a  private  treaty,  for  fraud  and  imposition  upon  the  seller.  The 
latter  is  in  no  just  sense  in  the  power  of  the  purchaser.  The  sa|le 
by  public  auction  is,  under  ordinary  circumstances,  evidence  of  the 
market-price  (e).  But  the  sale  of  post  obit  bonds  at  auction  carries 
with  it,  generally,  a  presumption  of  distress  and  pecuniary  embarrass- 
ment; and  if  the  ordinary  precautions  are  thrown  aside,  there>  is  a 
violent  presumption  of  extravagant  rashness,  imprudence,  or  circum- 
vention. 

§  348.  Contracts  of  a  nature  nearly  resembling  post  obit  bonds 
have,  in  cases  of  young  and  expectant  heirs,  been  often  relieved 
against,  upon  similar  principles.  Thus,  where  tradesmen  and  others 
have  sold  goods  to  such  persons  at  extravagant  prices,  and  under  cir- 
cumstances demonstrating  imposition,  or  undue  advantage,  or  an 
intention  to  connive  at  secret  extravagance,  and  profuse  expenditures, 
unknown  to  their  parents,  or  other  ancestors,  courts  of  equity  have 
reduced  the  securities,  and  cut  down  the  claims  to  their  reasonable 
and  just  amount  (/). 

§  349.  Another  class  of  constructive  frauds  upon  the  rights, 
interest,  or  duties  of  third  persons,  embraces  all  those  agreements 
and  other  acts  of  parties,  which  operate  directly  or  virtually  to  delay, 
defraud,   or  deceive  creditors.     Of  course,   we  do  not  here  speak  of 

(b)  King  v.  Hamlet,  2  Myl.  &  K.  458 ;  Savery  v.  King,  5  H.  L.  C.  627 ;  Scholefield 
V.  Templer,  4  De  G.  &  J.  429. 

(c)  Fox  V.  Wright,  6  Mad.  Ill;  Ear!  of  Aldborough  v.  Trye,  7  CI.  &  F.  436. 

(d)  Earl  of  Aldborough  v.  Trye,  7  CI.  &  F.  436. 

(e)  Shelly  v.  Nash,  3  Mad.  232;  Fox  v.  Wright,  6  Mad.  77;  Earl  of  Aldborough  v. 
Trye,  7  CI.  &  F.  436;  Lord  v.  Jeffkins,  3-5  Beav.  7. 

(/)  Bill  V.  Price,  1  Vern.  467,  and  Mr.  Eaithby's  note  (1);  Freeman  v.  Bishop, 
2  Atk.  39. 

B.J.  10 


146  EQUITY  JURISPRUDENCE.  [CH.    VII. 

cases  of  express  and  intentional  fraud  upon  creditors,  but  of  such  as 
virtually  and  indirectly  operate  the  same  mischief,  by  abusing  their 
confidence,  misleading  their  judgment,  or  secretly  undermining  their 
interest.  It  is  difficult,  in  many  cases  of  this  sort,  to  separate  tho 
ingredients,  which  belong  to  positive  and  intentional  fraud,  from 
those  of  a  mere  constructive  nature,  v^hich  the  lavs^  pronounces 
fraudulent  upon  principles  of  public  policy.  Indeed,  they  are  often 
found  mixed  up  in  the  same  transaction;  and  any  attempt  to  distin- 
guish between  them,  or  to  weigh  them  separately,  would  be  a  task  of 
little  utility,  and  might,  perhaps,  mislead  and  perplex  the  inquiries 
of  students. 

§  350.  It  must  be  a  fundamental  policy  of  all  enlightened  nations, 
to  protect  and  subserve  the  rights  of  creditors ;  and  a  great  anxiety  to 
afford  full  relief  against  frauds  upon  them  has  been  manifested :  not 
only  in  the  civil  law,  but  from  a  very  early  period  in  the  common 
law  also.  In  the  civil  law  it  was  declared,  that  whatever  was  done  by 
debtors  to  defeat  their  creditors,  whether  by  alienation,  or  by  other 
disposition  of  their  property,  should  be  revoked  or  null,  as  the  case 
might  require.  "Ait  Praetor;  Quse  fraudationis  causa  gesta  erunt, 
cum  eo,  qui  fraudem  non  ignoraverit;  de  his  curatori  bonorum,  vel 
ei,  cui  de  ea  re  actionem  dare  oportebit,  intra  annum,  quo  experiundi 
potestas  fuerit,  actionem  dabo.  Idque  etiam  adversus  ipsum,  qui 
fraudem  fecit,  servabo.  Necessario  Prsetor  hoc  edictum  proposuit ;  quo 
edicto  consuluit  creditoribus,  revocando  ea,  quseeunque  in  fraudem 
eorum  alienata  sunt  (g).  Ait  ergo  Praetor;  Quse  fraudationis  causa 
gesta"  erunt.  Hsec  verba  generalia  sunt,  et  continent  in  se  omnem 
omnino  in  fraudem  factam,  vel  alienationem  vel  quemcunque  con- 
tractum.  Quodcunque  igitur  fraudis  causa  factum  est,  videtur  his 
verbis  revocari,  qualecunque  fuerit.  Nam,  latfe  ista  verba  patent.  Sive 
ergo  rem  alienavit,  sive  acceptitatione  vel  pacto  aliquem  liberavit  (h). 
Idem  erit  probandum.  Et  si  pignora  liberet,  vel  quem  alium  in 
fraudem  creditorum  preeponat "  (f).  And  the  rule  was  not  only  applied 
to  alienations,  but  to  fraudulent  debts,  and,  indeed,  to  every  species 
of  transaction  or  omission,  prejudicial  to  creditors.  "  Vel  ei  prsebuit 
exceptionem,  sive  se  obligavit  fraudandorum  creditorum  causa,  sive 
numeravit  pecuniam,  vel  quodcunque  aliud  fecit  in  fraudem  credi- 
torum; palam  est,  edictum  locum  habere,  etc.  Et  qui  aliquid  fecit, 
ut  desinat  habere,  quod  habet,  ad  hoc  edictum  pertinet.  In  fraudem 
facere  videri  etiam  eum,  qui  non  facit,  quod  debet  facere,  intelli- 
gendum  est;  id  est,  si  non  utitur  servitutibus  "  (k). 

§  351.  Hence,  all  voluntary  dispositions,  made  by  debtors,  upon 
the  score  of  liberality,   were   revocable,  whether  the   donee  knew  of 

(9)  Dig.  Lib.  42,  tit.  8,  f.  1,  §  1. 

(/!)  Dig.  Lib.  42,  tit.  8,  f.  1,  §  2. 

(i)  Dig.  Lib.  42,  tit.  8,  f.  2. 

(k)  Dig.  Lib.  42,  tit.  8,  f.  3,  §  1,  2 ;  id.  f.  4. 


§  350 — 352.]  CONSTRUCTIVE  fraud.  147 

the  prejudice  intended  to  the  creditors  or  not.  "  Simili  modo  dicimus, 
et  si  cui  donatum  est,  non  esse  queerendum,  ^n  sciente  eo,  cui 
donatum  gestum  sit;  sed  hoc  tantum,  an  fraudentur  creditores  "  (I). 
And  the  Uke  rule  was  applied  to  purchasers,  even  for  a  valuable  con- 
sideration, if  they  knew  the  fraudulent  intention  at  the  time  of  their 
purchases,  and  thus  became  partakers  of  it,  that  they  might  profit  by 
it  (m).  "  Quse  fraudationis  causa  gesta  erunt,  cum  eo,  qui  fraudem 
non  ignoraverit,  de  his,  etc.,  actionem  dabo.  Si  debitor  in  fraudem 
creditorum  minore  pretio  fundum  scienti  emptor!  vendiderit;  deinde 
hi,  quibus  de  revocando  eo  actio  datur,  eum  petant;  quaesitum  est, 
an  pretium  restituere  debent  '?  Proculus  existimat,  omnimodi  resti- 
tuendum  esse  fundum,  etiamsi  pretium  non  solvatur ;  et  rescriptum 
est  secundum  Proculi  sententiam  "   (n). 

§  352.  The  common  law  adopted  similar  principles  at  an  early 
period.  These  principles,  however,  have  been  more  fully  carried  into 
effect  by  the  statutes  of  50  Edw.  3,  c.  6,  and  3  Hen.  7,  c.  4,  against 
fraudulent  gifts  of  goods  and  chattels;  by  the  statute  of  13  Eliz.  c.  5, 
against  fraudulent  conveyances  of  lands  to  defeat  or  delay  creditors ; 
and  by  the  statute  of  27  Eliz.  c.  4,  against  fraudulent  or  voluntary 
conveyances  of  lands  to  defeat  subsequent  purchasers.  These  statutes 
have  always  received  a  favourable  and  liberal  interpretation  in  all  the 
courts,  both  of  law  and  equity,  in  suppression  of  fraud  (o).  Indeed, 
the  principles  and  rules  of  the  common  law,  as  now  universally  known 
and  understood,  are  so  strong  against  fraud,  in  every  shape,  that 
Lord  Mansfield  has  remarked,  that  the  common  law  would  have 
attained  every  end  proposed  by  these  statutes  (p).  This  is,  perhaps, 
stating  the  matter  somewhat  too  broadly,  at  least  in  regard  to  the 
statute  of  27  Eliz.  c.  4.  This  statute  applies  to  land  and  not  to  per- 
sonalty (q).  A  series  of  decisions  had  established  that  a  settler  could 
defeat  a  voluntary  settlement  of  land  by  a  subsequent  sale  for  value 
to  a  third  party,  even  if  he  had  notice  of  the  settlement  (r).  By  the 
Voluntary  Conveyances  Act,  1893,  however,  the  settlement  must  now 
be,  in  fact,  fradulent  to  be  invalid.  Courts  of  equity,  from  the 
enlarged  principles  upon  which  they  act,  to  protect  the  rights  and 
interests  of  creditors,  give  full  effect  to  all  the  provisions,  and  exert 
their  jurisdiction  upon  the  same  construction  of  these  statutes,  which 
is  adopted  by  courts  of  law.     They  even  go  farther ;  and  (as  we  shall 


(l)  Dig.  Lib.  42,  tit.  8,  f.  6,  §  11. 

(m)  Dig.  Lib.  42,  tit.  8,  f.  1. 

(n)  Dig.  Lib.  42,  tit.  8,  f .  1 ;  id.  f.  7. 

(o)  Cadogan  v.  Kennett,  Cow,  432. 

(p)  Com.  Dig.  Govin,  B.  2.  The  statutes  of  60  Edw.  3,  c.  6,  aad  3  Hen.  7,  c.  4, 
expressly  declare  all  gifts,  &c.,  of  goods  and  chattels  intended  to  defraud  creditors,  to 
be  null  and  void. 

iq)  Jones  v.  Croucher,  1  Sim.  &  Stu.  315. 

(t)  Doe  V.  Manning.  9  East,  59;  Buckle  v.  Mitchell,  18  Ves.  110. 


148  EQUITY   JURISPRUDENCE.  [CH.    VII. 

presently  see)  extend  their  aid  to  many  cases  not  reached  by  these 

statutes. 

§  353.  And,  in  the  first  place,  let  us  consider  the  nature  and  opera- 
tion of  the  statute  of  13  Eliz.  e.  5,  as  to  creditors.  The  object  of 
the  legislature  evidently  was,  to  protect  creditors  from  those  frauds 
which  are  frequently  practised  by  debtors,  under  the  pretence  of 
discharging  a  moral  obligation;  that  is,  under  the  pretence  of  making 
suitable  provisions  for  wives,  children,  and  other  relations.  Indepen- 
dently of  the  statute,  no  one  can  reasonably  doubt  that  a  gift  or  con- 
veyance, whiph  has  neither  a  good  nor  a  meritorious  consideration  to 
support  it,  ought  not  to  be  valid  against  creditors ;  for  every  man  is 
bound  to  be  just  before  he  is  generous  (s) ;  and  the  very  fact  that  he 
makes  a  voluntary  gift  or  conveyance  to  mere  strangers  to  the  pre- 
judice of  his  creditors,  affords  a  conclusive  evidence  that  it  is 
fraudulent.  The  statute,  while  it  seems  to  protect  the  legal  rights 
of  creditors  against  the  frauds  of  their  debtors,  anxiously  excepts 
from  such  imputation  the  bond  fide  discharge  of  moral  duties.  It 
does  not,  therefore,  declare  all  voluntary  conveyances  to  be  void;  but 
only  all  fraudulent  conveyances  to  be  void.  And  whether  a  con- 
veyance be  fraudulent  or  not  is  declared  to  depend  on  its  being  made 
upon  good  consideration  and  bond-  fide."  It  is  not  sufficient  that 
it  be  upon  good  consideration  or  bond  fide.  It  must  be  both.  And, 
therefore,  if  a  conveyance  or  gift  be  defective  in  either  particular, 
although  it  is  valid  between  the  parties  and  their  representatives,  yet 
it  is  utterly  void  as  to  creditors  (t). 

§  354.  This  leads  us  to  the  inquiry,  what  are  deemed  good  con- 
siderations in  the  contemplation  of  the  statute.  A  good  consideration 
is  sometimes  used  in  the  sense  of  a  consideration  which  is  valid  in 
point  of  law;  and  then  it  includes  a  meritorious,  as  well  as  a  valuable 
consideration.  But  it  is  more  frequently  used  in  a  sense  contra- 
distinguished from  valuable;  and  then  it  imports  a  consideration  of 
blood,  or  natural  affection,  as  when  a  man  grants  an  estate  to  a  near 
relation  merely  founded  upon  motives  of  generosity,  prudence,  and 
natural  duty.  A  valuable  consideration  is  such  as  money,  marriage, 
or  the  like,  which  the  law  esteems  as  an  equivalent  given  for  the 
grant,  and  it  is,  therefore,  founded  upon  motives  of  justice  (m).  Deeds, 
made  upon  a  good  consideration  only,  are  considered  as  merely  volun- 
tary; those  made  upon  a  valuable  consideration  are  treated  as 
compensatory.  The  words  "  good  consideration,"  in  the  statute,  may 
be  properly  construed  to  include  both  descriptions;  for  it  cannot  be 
doubted,  that  it  meant  to  protect  conveyances,  made   bond,  fide  and 

(.s)  Copis  V.  Middleton,  2  Mad.  428. 

(t)  Twyne's  Case,  3  Co.  81;  Mathews  v.  Feaver,  1  Cox,  278. 

(u)  Black.  Comm.  297. 


§  353 — 356a.]  constructive  fraud.  149 

for  valuable  consideration,  as  well  as  those  made  bond  fide  upon  the 
consideration  of  blood  or  affection  (x). 

§  355.  In  regard  to  voluntary  conveyances,  they  are  unquestion- 
ably protected  by  the  statute  in  all  cases,  where  they  do  not  break  in 
upon  the  legal  rights  of  creditors.  But  when  they  break  in  upon 
such  rights,  and  so  far  as  they  have  that  effect,  they  are  not  per- 
mitted to  avail  against  those  rights.  If  a  man,  therefore,  who  is 
indebted,  conveys  property  to  his  wife  or  children,  such  a  conveyance 
is,  or  at  least  may  be,  within  the  statute ;  for,  although  the  con- 
sideration is  good,  as  between  the  parties,  yet  it  is  not,  in  contemplation 
of  law,  bond  fide;  for  it  is  inconsistent  with  the  good  faith  which 
a  debtor  owes  to  his  creditors,  to  withdraw  his  property  voluntarily 
from  the  satisfaction  of  their  claims  {y) ;  and  no  man  has  the  right  to 
prefer  the  claims  of  affection  to  those  of  justice.  This  doctrine,  how- 
ever (as  we  shall  presently  see),  requires,  or  at  least  may  admit  of, 
some  qualification  in  relation  to  existing  creditors,  where  the  circum- 
stances of  the  indebtedness  and  the  conveyance  repel  any  possible 
imputation  of  fraud,  as  where  the  conveyance  is  of  a  small  property 
by  a  person  of  great  wealth,  and  his  debts  bear  a  very  small  proportion 
to  his  actual  means. 

§  356.  But,  at  all  events,  the  same  doctrine  does  not  apply  to  a 
man  not  indebted  at  the  time,  or  in  favour  of  subsequent  creditors. 
There  is  nothing  inequitable  or  unjust  in  a  man's  making  a  voluntary 
conveyance  or  gift,  either  to  a  wife,  or  to  a  child,  or  even  to  a  stranger, 
if  it  is  not,  at  the  time,  prejudicial  to  the  rights  of  any  other  persons, 
or  in  furtherance  of  any  meditated  design  of  future  fraud  or  injury  to 
other  persons  (z). 

§  356a.  It  is  perfectly  clear,  however,  that  the  statute  of  13  Eliz. 
renders  void  settlements  which  fraudulently  withdraw  assets  from 
persons  who  may  become  creditors  subsequent  to  its  execution  (a). 
The  question  to  be  determined  in  each  case  is  the  fraudulent  effect  of 
the  conveyance,  and  this  is  necessarily  largely  a  question  of  fact.  It 
is  impossible,  therefore,  to  reconcile  all  the  decisions  depending  upon 
the  statute,  or  the  language  in  which  judges  have  expressed  the  grounds 
of  their  ruling,  and  still  greater  difficulty  is  presented  when  we  strive 
to  discovery  what  matters  are  to  be  regarded  as  circumstances  of 
evidence  and  what  matters  are  to  be  treated  as  necessary  conclusions. 
One  thing  appears  to  be  clear,  and  that  is  the  increasing  advantage 
that  the  creditor  enjoys  under  the  later  cases.     An  illusory  considera- 

(a;)  Twyne's  case,  3  Co.  81;  Copis  v.  Middleton,  2  Mad.  430. 

(y)  Ibid. 

(z)  Townsend  v.  Windham,  2  Ves.  Sen^  11;  Holloway  v.  Millard,  1  Mad.  414; 
Battershee  v.  Farrington,  1  S^anst.  106,  113. 

(a)  Ex  parte  Russell,  In  re  Butterworth,  18  Ch.  D.  588;  In  re  Ridler,  Ridler  v. 
Ridler,  22  Ch.  D.  74;  Ex  parte  Gimblett,  In  re  Lane  Fox,  [1900]  2  Q.  B.  508. 


150  EQUITY   JURISPRUDENCE.  [CH.    VIl. 

tion  is  not  sufi&cient  to  save  the  conveyance  if  attacked,  but  it  is  not 
essential  that  the  purchaser  should  shovi?  that  he  gave  the  highest 
market  value  (b). 

§  355b.  Fraud,  for  the  purposes  of  the  statute  of  13  Eliz.  c.  5,  is  a 
matter  of  inference.  "  If  a  person  owing  debts  makes  a  settlement 
which  subtracts  from  the  property  which  is  the  proper  fund  for  the 
payment  of  those  debts  an  amount  without  which  the  debts  cannot  be 
paid,  then,  since  it  is  the  necessary  consequence  of  the  settlement 
(supposing  it  effectual)  that  some  creditors  must  remain  unpaid,  it 
would  be  the  duty  of  the  judge  to  direct  the  jury  that  they  must  infer 
the  intent  of  the  settlor  to  have  been  to  defeat  or  delay  his  creditors, 
and  that  the  case  is  within  the  statute  "  (c).  And  even  although  the 
settlor  is  solvent  at  the  time  he  makes  the  voluntary  settlement,  yet 
if  he  becomes  insolvent  within  some  short  period  after,  the  burden  of 
proving  that  he  was  solvent  at  the  time  when  he  executed  the  settle- 
ment, will  rest  on  the  party  who  executed  it,  and  not  on  the  parties 
who  seek  to  set  it  aside  (d);  and  if  the  voluntary  settlement  is 
executed  by  a  man  who  contemplates  going  into  trade,  or  entering  on 
a  new  trade,  of  which  he  has  not  had  experience,  and  the  issue  of 
which  he  therefore  knows  to  be  uncertain,  his  subsequent  creditors 
will  be  entitled  to  set  the  settlement  aside,  if  in  the  settlement  the  bulk 
of  the  settlor's  property  is  included  (e). 

§  869.  Having  thus  given  the  state  of  the  law  with  regard  to 
voluntary  conveyances,  we  proceed  to  remark  that  a  conveyance,  even 
if  for  a  valuable  consideration,  is  not,  under  the  statute  of  the  13  Eliz., 
valid  in  point  of  law  from  that  circumstance  alone.  It  must  also  be 
bond  fide;  for  if  it  be  made  with  intent  to  defraud  or  defeat  creditors, 
it  will  be  void,  although  there  may,  in  the  strictest  sense,  be  a  valuable, 
nay,  an  adequate,  consideration.  This  doctrine  was  laid  down  in 
Twyne's  case  (3  Co.  81),  and  it  has  ever  since  been  steadily  adhered 
to.  Cases  have  repeatedly  been  decided,  in  which  persons  have  given 
a  full  and  fair  price  for  goods,  and  where  the  possession  has  been 
actually  changed ;  yet  being  done  for  the  purpose  of  defeating  creditors, 
the  transaction  has  been  held  fraudulent,  and,  therefore,  set  aside  (/). 
A  debtor  may  deprive  a  creditor  of  the  fruits  of  his  judgment  by  way 
of  execution  by  means  of  a  sale  for  the  full  value  of  the  goods  {g). 

§  369b.  In  the  next  place,  the  statute  13  Eliz.  c.  5  protects  in 
express  terms  a  conveyance  if  made  "  upon  good  consideration  and 

(b)  Muthews  v.  Feaver,  1  Cox  278;  Copis  v.  Middleton,  2  Mad.  410;  In  re  Ridler, 
Ridler  v.  Ridler,  22  Ch.  T>.  74. 

(c)  Freeman  v.  Pope,  L.  E.  5  Ch.  538. 

(d)  Townsend  v.  Westacott,  2  Beav.  340;  Taylor  v.  Coenan,  1  Ch.  D.  636. 

(e)  Maekay  v.  Douglas,  L.  E.  14  Bq.  106;  Ex  parte  Russel,  In  re  Butterworth, 
19  Ch.  D.  588. 

(/)  Cadogan  v.  Kennett,  Cowp.  434. 

(g)  Wood  V.  Dixie,  7  Q  B.  892;  Hale  v.  Saloon  Ommhus  Co.,  4  Drew.  492; 
Darvill  v.  Terry,  6  H.  &  N.  807. 


§  355b — 373.]  constructive  fraud.  151 

bond  fide."  A  settlement  is  validated  by  a  purchase  for  value  of  an 
interest  limited  by  it  by  a  person  who  has  no  notice  that  its  validity 
could  be  successfully  impugned  {h). 

§  371.  It  may  be  added  that,  although  voluntary  conveyances  are 
or  may  be  void  as  to  existing  creditors,  they  are  perfect  and  effectual 
as  between  the  parties,  and  cannot  be  set  aside  by  the  grantor,  if  he 
should  become  dissatisfied  with  the  transaction  (/).  It  is  his  own  folly 
to  have  made  such  a  conveyance.  They  are  not  only  valid  as  to  the 
gtantor,  but  also  as  to  his-  heirs,  and  all  other  persons  claiming  under 
him  in  privity  of  estate  with  notice  of  the  fraud  (k).  A  conveyance  of 
this  sort  (it  has  been  said,  with  greati  truth  and  force)  is  void  only  as 
against  creditors;  and  then  only  to  the  extent  in  which  it  may  be 
necessary  to  deal  with  the  conveyed  estate  for  their  satisfaction.  To 
this  extent,  and  to  this  only,  it  is  treated  as  if  it  had  not  been  made. 
To  every  other  purpose  it  is  good.  Satisfy  the  creditor,  and  the 
conveyance  stands  (I).  And  if  a  creditor  is  a  party  to  such  deed  and 
acquiesces  in  it,  he  cannot  afterwards  avoid  it;  nor  can  any  one 
claiming  under  him  (tn.).  Further  if  a  man  having  made  a.  voluntary 
settlement  of  land  contracts  to  sell  it,  the  vendee  can  compel  a  specific 
performance  of  the  contract  against  him,  but  that  he,  under  ordinary 
circumstances,  cannot  compel  specific  performance  against  the 
vendee  (n).  But  if  the  vendee  says  he  is  willing  to  complete,  on  getting 
a  good  title,  seeing  that  it  is  in  the  vendee's  power  to  obtain  a  good 
title,  specific  performance  can  be  enforced  against  the  vendee  (o). 

§  372.  The  circumstances  under  which  a  conveyance  will  be  deemed 
purely  voluntary,  or  will  be  deemed  affected  by  a  consideration 
valuable  in  itself,  or  in  furtherance  of  an  equitable  obligation,  are 
very,  important  to  be  considered ;  but  they  more  properly  belong  to  a 
distinct  treatise  upon  the  nature  and  validity  of  settlements. 

§  373.  In  like  manner,  what  circumstances,  connected  with  volun- 
tary or  valuable  conveyances,  are  badges  of  fraud,  or  raise  presumptions 
of  intentional  bad  faith,  though  very  important  ingredients  in  the 
exercise  of  equitable  jurisdiction,  fall  rather  within  the  scope  of 
treatises  on  evidence,  than  of  discussions  touching  jurisdiction  (p).  It 
may,  however,  be  generally  stated,  that  whatever  would  at  law  be 
deemed  badges  of  fraud,  or  presumptions  of  ill  faith,  will  be  fully 
acted  upon  in  courts  of  equity.  But,  on  the  other  hand,  it  is  by  no 
means  to  be  deemed  a  logical  conclusion,  that,  because  a  transaction 

(h)  Halifax  Joint  Stock  Bank  v.  Gledhill,  [1891]  1  Ch.  31. 
(j)  Petre  v.  Espinasse,  2  Myl.  &  K.  496;  Bill  v.  Cureton,  2  Myl.  &  K.  510. 
(fe)  Randall  v.  Phillips,  3  Mason  378. 
(l)  Sir  W.  Grant,  in  Curtis  v.  Price,  12  Ves.  103. 

(m)  Oliver  v.  King,  8  De  G.  M.  &  G.  110.  See  Ex  parte  Taylor,  Sons  d  Co. ;  In 
re  Brindley,  [1906]  1  K.  B.  377. 

(n)  Smith  v.  Garland,  2  Meriv.  123. 
(o)  Peter  v.  Nicolls,  L.  E.  11  Bq   391. 
(p)  Twyne's  case,  3  Co.  80. 


152  EQUITY   JUEISPEUDENCE.  [CH.    VII. 

could  not  be  reached  at  law  as  fraudulent,  therefore  it  would  be  equally 
safe  against  the  scrutiny  of  a  court  of  equity ;  for  a  court  of  equity 
requires  a  scrupulous  good  faith  in  transactions  which  the  law  might 
not  repudiate.  It  acts  upon  conscience,  and  does  not  content  itself 
with  the  narrower  views  of  legal  remedial  justice. 

§  374.  The  question  has  been  much  discussed  how  far  a  settle- 
ment, made  after  marriage,  in  pursuance  of  an  asserted  parol  agree- 
ment before  marriage,  is  valid,  as  against  creditors,  in  cases  affected 
by  tte  Statute  of  Frauds.  There  is  no  doubt,  that  such  a  settlement, 
made  in  pursuance  of  a  prior  valid  written  agreement,  would  be 
completely  effectual  against  creditors.  But  the  difficulty  is,  whether 
such  a  settlement,  executed  in  pursuance  of  a  parol  contract,  obliga- 
tory in  foro  conscientix ,  ought  to  be  protected,  when  made,  although 
it  might  not  be  capable  of  being  enforced,  if  not  made.  Lord  Thurlow 
seems  to  have  favoured  the  view  that  the  settlement  would  be  valid  (g) ; 
on  the  other  hand  we  have  the  opposite  view  maintained  by  Sir 
Thomas  Plumer,  M.E.  (?•),  and  Lord  Cranworth  (s).  Certainly  Lord 
Thurlow 's  view  is  more  consistent  with  the  accepted  interpretation 
that  the  contract  exists  independently  of  the  writing,  and  that  the 
Statute  of  Frauds  is  concerned  only  with  the  proof  of  the  contract. 
Perhaps  the  true  solution  will  follow  upon  the  lines  of  lost  evidence. 
If  written  proof  has  existed  but  is  lost,  then  parol  evidence  may  be 
given  of  the  lost  instrument  (i),  but  at  the '  same  the  evi- 
dence should  be  examined  with  the  greatest  care,  and  treated  with 
suspicion  (u). 

§  375.  The  same  policy,  of  affording  protection  to  the  rights  of 
creditors,  pervaded  the  provisions  of  the  statute  of  the  3rd  and  4th 
of  Will.  &  Mary,  c.  14,  respecting  devises  in  fraud  of  creditors,  now 
replaced  by  the  Debts  Eecovery  Act,  1830,  which  has  an  enlarged 
scope. 

§  377.  These  cases  of  interposition  in  favour  of  creditors  being 
founded  upon  the  provisions  of  positive  statutes,  a  question  was  made 
at  an  early  day  whether  they  were  exclusively  cognizable  at  law ;  or 
they  could  be  carried  into  effect  also  in  equity.  The  jurisdiction  of 
courts  of  equity  is  now  firmly  established,  for  it  extends  to  cases  of 
fraud,  whether  provided  against  by  statute  or  not.  And,  indeed,  the 
remedial  justice  of  a  court  of  equity  in  many  cases  arising  under 
these  statutes,  is  the  only  effectual  one  which  can  be  administered; 
as  that  of  courts  of  law  must  often  fail  from  the  want  of  adequate 
powers  to  reach  or  redress  the  mischief. 

§  378.  There    are    other     cases    of    constructive     frauds    against 

(q)  Dundas  v.  Dutens,  1  Ves.  Jun.  196. 
(r)  Battersbee  v.  Farrington,  1  Swanst.  106. 
(s)  Warden  v.  Jones,  2  De  G.  &  J.  276. 
(t)  Read  v.  Price,  [1909]  2  K.  B.  724. 
(u)  Nichol  V.  Bestwick,  28  L.  J.  Ex.  i. 


§  374 — 379.]  CONSTRUCTIVE  FRAUD.  153 

creditors  which  the  wholesome  moral  justice  of  the  law  has  equally 
discredited  and  denounced.  "We  refer  to  that  not  unfrequent  class 
of  cases  in  which,  upon  the  failure  or  insolvency  of  their  debtors, 
some  creditors  have,  by  secret  compositions,  obtained  undue  advan- 
tages, and  thus  decoyed  other  innocent  and  unsuspecting  creditors 
into  signing  deeds  of  composition,  which  they  supposed  to  be  founded 
upon  the  basis  of  entire  equality  and  reciprocity  among  all  the  creditors ; 
when,  in  fact,  there  was  a  designed  or  actual  imposition  upon  all  but 
the  favoured  few.  The  purport'  of  a  composition  or  trust-deed,  in 
cases  of  insolvency,  usually  is,  that  the  property  of  the  debtor  shall 
be  assigned  to  trustees,  and  shall  be  collected  and  distributed  by 
them  among  the  creditors,  according  to  the  order  and  terms  prescribed 
in  the  deed  itself.  And,  in  consideration  of  the  assignment,  the 
creditors,  who  become  parties,  generally  agree  to  release  all  their 
debts  beyond  what  the  funds  will  satisfy.  Now,  it  is  obvious  that,  in 
all  transactions  of  this  sort,  the  utmost  good  faith  is  required ;  and 
the  very  circumstance  that  other  creditors,  of  known  reputation  and 
standing,  have  already  become  parties  to  the  deed,  will  operate  as  a 
strong  inducement  to  others  to  act  in  the  same  way.  But  if  the  sig- 
natures of  such  prior  creditors  have  been  procured  by  secret  arrange- 
ments with  them,  more  favourable  to  them  than  the  general  terms 
of  the  composition  deed  warrant,  those  creditors  really  act  (as  has 
been  said  by  a  very  significant  although  a  homely  figure)  as  decoy- 
ducks  upon  the  rest.  They  hold  out  false  .colours  to  draw  in  others  to 
their  loss  and  ruin. 

§  379.  The  doctrine  was  familiar  in  courts  of  law,  and  was  not 
peculiar  to  courts  of  equity  (x),  that  such  secret  arrangements  are 
utterly  void,  and  ought  not  to  be  enforced,  even  against  the  assenting 
debtor,  or  his  sureties,  or  his  friends  (y).  There  is  great  wisdom  and 
deep  policy  in  the  doctrine,  and  it  is  founded  in  the  best  of  all  protec- 
tive policy,  that  which  acts  by  way  of  precaution  rather  than  by  mere 
remedial  justice ;  for  it  has  a  strong  tendency  to  suppress  all  frauds 
upon  the  general  creditors  by  making  the  cunning  contrivers  the 
victims  of  their  own  illicit  and  clandestine  agreements.  The  relief  is 
granted  not  for  the  sake  of  the  debtor,  for  no  deceit  or  oppression 
may  have  been  practised  upon  him,  but  for  the  sake  of  honest,  and 
humane,  and  unsuspecting  creditors.  And,  hence,  the  relief  is  granted 
equally,  whether  the  debtor  has  been  induced  to  agree  to  the  secret 
bargain  by  the  threats  or  oppression  of  the  favoured  creditors,  or 
whether  he  has  been  a  mere  volunteer,  offering  his  services,  and  aiding 
in  the  intended  deception.  Such  secret  bargains  are  deemed  incapable 
of  being  enforced  or  confirmed,  but  money  paid  under  them  is  not 
recoverable  back,  except  under  the  provisions  of  the  Bankruptcy  Acts, 

(x)  Cockshott  V.  Bennett,  2  T.  E.  763. 

(y)  Jackman  v.  Mitchell,  13  Ves  581;  CuUingworth  v.  Lloyd,  2  Beav.  885;  Ex 
parte  Milner,  In  re  Milner,  15  Q.  B.  D.  605. 


154  EQUITY   JURISPRUDENCE.  [CH.    VII. 

as  a  fraudulent  preference,  as  it  is  a  voluntary  payment  (a).  And  it  is 
wholly  immaterial  whether  such  secret  bargains  give  to  the  favoured 
creditors  a  larger  sum,  or  an  additional  security  or  advantage,  or  only 
misrepresent  some  important  fact;  for  the  effect  upon  other  creditors 
is  precisely  the  same  in  each  of  these  cases.  They  are  misled  into  an 
act  to  whict  they  might  not  otherwise  have  assented  (a).  The  trans- 
action is  void  whether  the  collateral  advantage  is  extorted  from  the 
debtor,  or  is  provided  by  a  third  party  (b).  The  principle  only  applies 
to  cases  of  collective  bargaining  on  the  footing  of  equality ;  a  creditor 
may  make  an  independent  bargain  with  a  debtor  who  is  seeking  to 
compromise  the  claims  of  his  creditors  individually  (c). 

§  380.  In  equity,  any  agreement,  made  by  a  bankrupt  debtor  in 
fraud  of  his  creditors,  will  be  held  void,  and  will  be  rescinded,  upon  the 
ground  of  public  policy,  whenever  it  comes  before  a  court  of  equity, 
even  though  the  suit  happens  to  be  at  the  instance  of  the  insolvent 
himself  (d),  unless  the  objection  appears  on  the  face  of  the  instru- 
ment (e). 

§  381.  In  concluding  this  discussion,  so  far  as  it  regards  creditors, 
it  is  proper  to  be  remarked,  that  although  voluntary  and  other  con- 
veyances, in  fraud  of  creditors,  are  thus  declared  to  be  utterly  void; 
yet,  they  are  so,  only  so  far  as  the  original  parties  and  their  privies, 
and  others  claiming  under  them,  who  have  notice  of  the  fraud,  are 
concerned.  For  bond  fide  purchasers  for  a  valuable  consideration, 
without  notice  of  the  fraudulent  or  voluntary  grant,  are  of  such  high 
consideration,  that  they  will  be  protected,  as  well  at  law  as  in  equity, 
in  their  purchases  (/).  It  would  be  plainly  inequitable,  that  a  party 
who  has,  bond  fide,  paid  his  money  upon  the  faith  of  a  good  title, 
should  be  defeated  by  any  creditor  of  the  original  grantor,  who  has 
no  superior  equity,  since  it  would  be  impossible  for  him  to  guard  him- 
self against  such  latent  frauds.  The  policy  of  the  law,  therefore,  which 
favours  the  security  of  titles,  as  conducive  to  the  public  good,  would 
be  subverted,  if  a  creditor,  having  no  lien  upon  the  property,  should 
yet  be  permitted  to  avail  himself  of  the  priority  of  his  debt,  to  defeat 
such  a  bond  fide  purchaser.  Where  the  parties  are  equally  meritorious, 
and  equally  innocent,  the  known  maxim  of  courts  of  equity  is.  Qui 
prior  est  in  tempore,  potior  est  in  jure ;  he  is  to  be  preferred,  who  has 

(z)  Wilson  V.  Bmj,  10  A.  &  E.  82. 

(a)' Knight  v.  Hunt,  5  Bing.  432;  CulUngworth  v.  Lloyd,  2  Beav.  385;  McKewan 
v.  Sanderson,  L.  E.  20  Eq.  66. 

(b)  Knight  v.  Hunt,  5  Bing.  432;  Farmers'  Mart,  Ltd.  v.  Milner,  [1915]  A.  C. 
106. 

(c)  Ellis  V.  McHenry,  Levita's  Claim,  [1894]  3  Ch.  365.  See  Boyd  v.  Hind, 
1  H.  &  N.  938. 

(d)  Jackman  v.  Mitchell,  13  Vea.  581;  McNeill  v.  Cahill,  2  Bligh.  228;  Mare  v. 
Sandford,  1  Giff.  288;  Wood  v.  Barker,  L.  R.  1  Eq.  139. 

(e)  Simpson  v.  Lord  Howden,  3  M.  &  Cr.  97. 

if)  Prodgers  v.  Langham,  1  Sid.  133;  Halifax  Joint  Stock  Bank  v.  Gledhill, 
[1891]  1  Ch.  31. 


§  380 — 384.]  CONSTRUCTIVE  FRAUD.  155 

acquired  the  first  title.  This  point,  however,  will  naturally  present 
itself  in  other  aspects,  when  we  come  to  the  consideration  of  the 
general  protection,  afforded  by  courts  of  equity,  to  purchasers  standing 
in  such  a  predicament. 

§  382.  Other  underhand  agreements,  which  operate  as  a  fraud 
upon  third  persons,  may  easily  be  suggested,  to  which  the  same 
remedial  justice  has  been  applied.  Thus,  where  a  father,  upon  the 
marriage  of  his  daughter,  entered  into  a  covenant,  that  upon  his 
death  he  would  leave  her  certain  tenements,  and  that  he  would,  also 
by  his  will,  give  and  leave  her  a  full  and  equal  share,  with  her  brother 
and  sister,  of  all  his  personal  estate;  and  he  afterwards,  during  his 
life,  transferred  to  his  son  a  very  large  portion  of  his  personal  property, 
consisting  of  public  stock,  but  retained  the  dividends  for  his  life;  it 
was  held,  that  the  transfer  was  void,  as  a  fraud  upon  the  marriage 
articles;  and  the  son  was  compelled  to  account  for  the  same  (g). 
Covenants  of  this  nature  are  proper  in  themselves,  and  ought  to  be 
honourably  observed.  They  ought  not  to  be,  and  indeed  are  not,  con- 
strued to  prohibit  the  father  from  making,  during  his  lifetime,  any 
dispositions  of  his  personal  property  among  children,  more  favourable 
to  one  than  another.  But  they  do  prohibit  him  from  doing  any  acts 
which  are  designed  to  defeat  and  defraud  the  covenant.  He  may,  if  he 
pleases,  make  a  gift  bona  fide  to  a  child ;  but  then  it  must  be  an 
absolute  and  unqualified  gift,  which  surrenders  all  his  own  interest, 
and  not  a  mere  reversionary  gift  which  saves  the  income  to  himself 
during  his  own  life  {h). 

§  383.  So  if  a  friend  should  advance  money  to  purchase  goods  for 
another,  or  to  relieve  another  from  the  pressure  of  his  necessities, 
and  the  other  parties  interested  should  enter  into  a  private  agree- 
ment over  and  beyond  that  with  which  the  friend  is  made  acquainted, 
such  an  agreement  will  be  void  at  law,  as  well  as  in  equity;  for  the 
friend  is  drawn  in  to  make  the  advance  by  false  colours  held  out  to 
him,  and  under  a  supposition  that  he  is  acquainted  with  all  the 
facts  (j).  So  the  guaranty  of  the  payment  of  a  debt,  procured  from  a 
friend  upon  the  omission  by  the  parties  to  disclose  material  circum- 
stances, is  a  virtual  fraud  upon  him,  and  avoids  the  contract  (fe). 

§  384.  Another  class  of  constructive  frauds  of  a  large  extent,  and 
over  which  courts  of  equity  exercise  an  exclusive  and  very  salutary 
jurisdiction,  consists  of  those  where  a  man  designedly  or  knowingly 
produces  a  false  impression  upon  another,  who  is  thereby  drawn  into 
some  act  or  contract,  injurious  to  his  own  rights  or  interests.     This 

(g)  Jones  v.  Martin,  5  Ves.  265  n. ;  Randall  v.  Willis,  5  Ves.  261 ;  8  Bro.  Pari.  C. 
242,  by  Tomlins. 

(ill)  Logan  v.  Wienholt,  1  CI.  &  P.  611. 

(i)  Jackson  v.  Duchaise,  3  T.  R.  551. 

(k)  Pidcock  V.  Bishop,  3  B.  &  C.  605;  Smith  v.  Bank  of  Scotland,  1  Dow,  272; 
London  General  Omnibus  Co.  v.  Holloway,  [1912]  2  K.  B.  72. 


156  EQUITY   JURISPRUDENCE.  [CH.    VII. 

subject  has  been  partly  treated  before ;  but  it  should  be  again  brought 
under  our  notice  in  this  connection  (l).  No  man  can  reasonably  doubt, 
that  if  a  party,  by  the  wilful  suggestion  of  a  falsehood,  is  the  cause 
of  prejudice  to  another,  who  has  a  right  to  a  full  and  correct  repre- 
sentation of  the  fact,  his  claim  ought  in  conscience  to  b'e  postponed, 
±0  that  of  the  person  whose  confidence  was  induced  by  his  represen- 
lation.  And  there  can  be  no  real  difference  between  an  express 
representation,  and  one  that  is  naturally  or  necessarily  implied  from 
the  circumstances.  The  wholesome  maxim  of  the  law  upon  this 
subject,  is,  that  a  party  who  enables  another  to  commit  a  fraud  is 
answerable  for  the  consequences  (m) ;  and,  the  maxim  so  often  cited, 
Fraus  est  celare  fraudem,  is,  with  proper  limitations  in  its  applica- 
tion, a  rule  of  general  justice. 

§  385.  In  many  cases,  a  man  may  innocently  be  silent;  for,  as 
has  often  been  observed,  Aliud  est  tacere,  aliud  celare.  But,  in 
other  cases,  a  man  is  bound  to  speak  out ;  and  his  very  silence 
becomes  as  expressive  as  if  he  had  openly  consented  to  what  is  said 
or  done,  and  had  become  a  party  to  the  transaction.  Thus,  if  a  man, 
having  a  title  to  an  estate,  which  is  offered  for  sale,  and  knowing  his 
title,  stands  by  and  encourages  the  sale,  or  does  not  forbid  it,  and 
thereby  another  person  is  induced  to  purchase  the  estate,  under  the 
supposition  that  the  title  of  the  actual  vendor  is  good,  the  true  owner, 
so  standing  by  and  being  silent,  will  be  bound  by  the  sale,  and 
neither  he  nor  his  privies  will  be  at  liberty  to  dispute  the  validity 
of  the  purchase  (n).  So,  if  a  man  should  stand  by,  and  see  another 
person,  as  grantor,  execute  a  deed  of  conveyance  of  land  belongfing  to 
himself,  and,  knowing  the  facts,  should  sign  his  name  as  a  witness, 
he  would  in  equity  be  bound  by  the  conveyance  (o).  So,  if  a  party 
knowing  himself  to  have  a  title  to  an  estate  (p),  should  stand  by,  and 
allow  another,  whom  he  knows  believes  himself  to  be  entitled,  to 
expend  money  upon  the  estate,  without  giving  him  notice,  he  would 
not  be  permitted  by  a  court  of  equity  to  assert  that  title  against  such 
purchaser,  at  least  not  without  fully  indemnifying  him  for  all  his 
expenditure  (g).  The  same  rule  has  been  applied  both  at  law  and  in 
equity,  where  the  owner  of  chattels,  with  a  full  knowledge  of  his  own 
title,  has  permitted  another  person  to  deal  with  these  chattels  as  his 
own,  in  his  transactions  with  third  persons,  who  have  bargained  and 
acted  in  the  confidence  that  the  chattels  were  the  property  of  the 

(l)  Ante,  U  192-204. 

(m)  Bac.  Max.  16. 

in)  Savage  v.  Foster,  9  Mod.  35.  Although  the  author  and  most  equity  practi- 
tioners class  this  as  fraud,  it  is  the  familiar  common  law  doctrine  of  estoppel.  Pickard 
V.  Sears,  6  A.  &  E.  474;  Freeman  v.  Cooke,  2  Ex,  654. 

(o)  Teesdale  v.  Teesdale,  Sel.  Ch.  Caa.  59. 

(p)  Bell  V.  Marsh,  [1903]  1  Ch.  528. 

iq)  Ramsden  v.  Dyson,  L.  E.  1  H.  L.  129;  Willmott  v.  Barber,  15  Ch.  D.  96; 
SumpterM.  Hedges,  [1898]  1  Q.  B.  673. 


§  385 — 393.]  CONSTRUCTIVE  PRADD.  157 

person  with  whom  they  dealt  (r).  Cases  of  this  sort  are  viewed  with 
so  much  disfavour  by  courts  of  equity,  that  disabihty  will  not  constitute 
any  excuse  for  the  party  guilty  of  the  concealment  or  misrepresenta- 
tion ;  for  neither  infants  nor  femes  covert  are  privileged  to  practise 
deception  or  cheats  on  other  innocent  persons  (s). 

§  386.  In  order  to  justify  the  application  of  this  cogent  moral 
principle,  it  is  indispensable  that  the  party  so  standing  by  and 
concealing  his  rights  should  be  fully  apprised  of  them,  and  should, 
by  his  conduct  or  gross  negligence,  encourage  or  influence  the 
purchase;  for  if  he  is  wholly  ignorant  of  his  rights,  or  the  purchaser 
knows  them,  or,  if  his  acts,  or  silence,  or  negligence,  do  not  mislead, 
or  in  any  manner  affect  the  transaction,  there  can  be  no  just  inference 
of  actual  or  constructive  fraud  on  his  part. 

§  387.  There  are  indeed  old  cases,  where  it  has  been  held  that 
ignorance  of  title  will  not  excuse  a  party;  for,  if  he  actually  misleads 
the  purchaser  by  his  own  representations,  although  innocently,  the 
maxim  is  applied  to  him,  that,  where  one  of  two  innocent  persons  must 
suffer,  he  shall  suffer  who,  by  his  own  acts,  occasioned  the  confidence 
and  the  loss  (<).  But  this  doctrine  of  the  incidence  of  the  loss  is  no 
longer  recognised  (w).  The  true  doctrine  is  either  that  there  is  an 
estoppel,  or  that  the  negotiations  have  proceeded  upon  the  assumption 
that  a  certain  state  of  circumstances  exist,  which  is  in  truth  a  warranty 
or  condition. 

§  391.  In  all  this  class  of  cases,  the  doctrine  proceeds  upon  the 
ground  of  constructive  fraud,  or  of  gross  negligence.  And,  therefore, 
where  the  circumstances  of  the  case  repel  any  such  inference,  although 
there  may  be  some  degree  of  negligence,  yet  courts  of  equity  will  not 
grant  relief  (x).  It  has,  accordingly,  been  laid  down  by  a  very  learned 
judge,  that  the  cases  on  this  subject  go  to  this  result  only,  that  there 
must  be  positive  fraud,  or  concealment,  or  negligence  so  gross  as  to 
amount  to  constructive  fraud  (y).  And,  if  the  intention  be  fraudulent, 
although  not  exactly  pointing  to  the  object  accomplished;  yet  the  party 
will  be  bound  to  the  same  extent  as  if  it  had  been  exactly  so  pointed  (a). 

§  393.  What  circumstances  will  amount  to  undue  concealment, 
or  to  misrepresentation,  in  cases  of  this  sort,  is  a  point  more  fit  for  a 
treatise  of  evidence,   than  for  one  of  mere  jurisdiction.     But  it  has 

(r)  Nicholson  v.  Hooper,  4k  Myl.  &  Cr.  179;  Pickard  v.  Sears,  6  A.  &  E.  474. 

(«)  Savage  v.  Foster,  9  Mod.  35;  Sugden,  Vendors  and  Purch.,  ch.  16,  p.  262, 
9th  edit. ;  post,  §  387. 

(t)  See .3  P.  Will.  74,  Mr.  Cox's  note;  Pearson  v.  Morgan,  2  Bro.  C.  C.  388. 

(u)  Scholfield  v.  Earl  of  Londesborough,  [1896]  A.  C.  514;  Farquharson  Bros. 
&  Co.  V.  King,  [1902]  A.  C.  325. 

(x)  Beckett  V.  Gordley,  1  Bro.  C.  C.  353;  Tourle  v.  Rand,  2  Bro.  C.  C.  652. 

(y)  Evans  v.  Bicknell,  6  Ves.  190,  191,  192;  Hewitt  v.  Loosemore,  9  Hare  449; 
Lord  St.  Leonards,  V.  and  P.  14th  edit.  755. 

(z)  Evans  v.  Bicknell,  6  Ves.  191,  192;  Beckett  v.  Gordley,  1  Bro.  C.  C.  357,  1 
Fonbl.  Eq.  B.  1,  ch.  3,  §  4;  Plurrib  v.  Fluitt,  2  Anst.  432,  440. 


158  EQUITY   JURISPRUDENCE.  [CH.    VII. 

been  held,  that  a  first  mortgagee's  merely  allowing  the  mortgagor  to 
have  the  title-deeds,  or  a  first  mortgagee's  witnessing  a  second 
mortgage-deed,  but  not  knowing  the  contents,  or  even  concealing 
from  a  second  •  mortgagee  information  of  a  prior  mortgage  when  he 
made  application  therefor,  the  intention  of  the  party  applying  to 
lend  money  not  being  made  known,  are  not  of  themselves  sufficient 
to  affect  the  first  mortgagee  with  constructive  fraud  -(a).  There  must 
be  other  ingredients  to  give  colour  and  body  to  these  circumstances ; 
for  they  may  be  compatible  with  entire  innocence  of  intention  and 
object  (b).  Nothing  but  a  voluntary,  distinct,  and  unjustifiable  con- 
currence on  the  part  of  the  first  mortgagee,  in  the  mortgagor's  retaining 
the  title-deeds,  is  now  deemed  a  sufficient  reason  for  postponing  his 
priority.  And,  in  regard  to  the  other  acts  above  stated,  they  must 
be  done  under  circumstances  which  show  a  like  concurrence  and 
co-operation  in  some  deceit  upon  the  second  mortgagee  (c). 

§  393a..  The  doctrine  was  discussed  in  an  exhaustive  judgment 
of  Fry,  L.J.,  delivering  the  judgment  of  the  whole  Court  of  Appeal: 
"  The  authorities  which  we  have  reviewed  appear  to  us  to  justify  the 
following  conclusions: — (1)  That  the  court  will  postpone  the  prior 
legal  estate  to  a  subsequent  equitable  estate :  (a)  where  the  owner 
of  the  legal  estate  has  assisted  in  or  connived  at  the  fraud  which 
has  led  to  the  creation  of  a  subsequent  equitable  estate  without 
notice  of  the  prior  legal  estate;  of  which  assistance  or  connivance,  the 
omission  to  use  ordinary  care  in  inquiry  after  or  keeping  title-deeds 
may  be,  and  in  some  cases  has  been,  held  sufficient  evidence,  where 
such  conduct  cannot  otherwise  be  explained;  (b)  where  the  owner  of 
the  legal  estate  has  constituted  the  mortgagor  his  agent  with  authority 
io  raise  money,  and  the  estate  thus  created  has,  by  the  fraud  or 
misconduct  of  the  agent,  been  represented  as  being  the  first  estate. 

(a)  West  V.  Reid,  2  Hare  249 ;  Colyer  v.  Finch,  5  H.  L.  C.  905.  In  the  first  case 
Vice-Chanoellor  Wigrara  said  :  "  In  short,  let  the  doctrine  of  constructive  notice  be 
extended  to  all  cases  (it  is,  in  fact,  more  confined  in  Plumb  v.  Fluitt,  Evans  v. 
Bicknell,  Cothay  v.  Sydenham,  and  other  cases),  but  let  it  be  extended  to  all  cases 
in  which  the  purchaser  has  notice  that  the  property  is  affected,  or  has  notice  of  facts 
raising  a  presumption  that  it  is  so,  and  the  doctrine  is  reasonable,  though  it  may  some- 
times operate  with  severity.  But  once  transgress  the  limits  which  that  statement  of 
the  rule  imposes, — once  admit  that  a  purchaser  is  to  be  effected  with  constructive  notice 
of  the  contents  of  instruments  not  necessary  to,  nor  presumptively  connected  with  the 
title,  only  because  by  possibility  they  may  affect  it  (for  that  may  be  predicted  of  almost 
any  instrument);  and  it  is  impossible,  in  sound  reasoning,  to  stop  short  of  the  con- 
clusion that  every  purchaser  is  affected  with  constructive  notice  of  the  contents  of  every 
instrument,  of  the  mere  existence  of  which  he  has  notice, — a  purchaser  must  be  pre- 
sumed to  investigate  the  title  of  the  property  he  purchases,  and  may,  therefore,  be 
presumed  to  have  examined  every  instrument  forming  a  link,  directly  or  by  inference, 
in  that  title ;  and  that  presumption  I  take  to  be  the  foundation  of  the  whole  doctrine. 
But  it  is  impossible  to  presume  that  a  purchaser  examines  instniments  not  directly  or 
presumptively  connected  with  the  title,  because  they  may  by  possibility  affect  it." 

(fc)  Evans  v.  Bicknell,  6  Ves.  172,  182,  190,  191,  192;  Plumb  v.  Fluitt,  2  Anst. 
432;  Hewitt  v.  Loosemore,  9  Hare  449;  Barnett  v.  Weston,  12  Ves.  133. 

(c)  Peter  v.  Russell,  2  Vern.  726,  and  Mr.  Eaithby's  note  (1). 


§  393a — 394.]  constructive  fraud.  159 

But  (2)  that  the  court  will  not  postpone  the  prior  legal  estate  to 
the  subsequent  equitable  estate  on  the  ground  of  any  mere  careless- 
ness or  want  of  prudence  on  the  part  of  the  legal  owner  "  (d).,  If,  on 
the  other  hand,  a  purchaser  having  bargained  for  a  better  title  and 
getting  nothing  but  an  equitable  title,  may  afterwards  get  in  a  legal 
title,  and  may  hold  it,  though,  during  the  interval  between  the  payment 
and  the  getting  in  the  legal  title,  he  may  have  had  notice  of  some  prior 
dealing,  inconsistent  with  the  good  faith  of  the  dealing  with  himself  (e). 
And,  if  two  innocent  persons  take  equitable  mortgages  from  a  fraudu- 
lent mortgagor,  mere  carelessness  or  want  of  prudence  on  the  part  of 
the  fipst  mortgagee  in  taking  his  security  is  not  sufficient  to  postpone 
him  to  the  second;  for  that  purpose,  the  negligence  must  be  "  gross," 
that  is,  so  great  as  to  make  the  first  mortgagee  responsible  for  the 
fraud  committed  on  the  second  mortgagee ;  but,  if  the  second  mortgagee 
obta,ins  a  legal  title  he  will  be  preferred  to  the  first  mortgagee,  unless 
the  legal  estate  has  been  obtained  in  breach  of  some  equity  which  the 
first  purchaser  possesses  (/). 

§  394.  It  is  curious  to  trace  how  nearly  the  Roman  law  approaches 
that  of  England  on  this  subject;  thus  demonstrating  that  if  they  had 
not  a  common  origin,  at  least  each  is  derived  from  that  strong  sense 
of  justice  which  must  pervade  all  enlightened  communities.  It  is  an 
acknowledged  principle  of  the  Roman  jurisprudence,  that  a  creditor 
who  consents  to  the  sale,  donation,  or  other  alienation  of  the  property 
of  his  debtor,  which  is  pledged  or  mortgaged  for  his  debt,  cannot 
assert  his  title  against  the  purchaser,  unless  he  reserves  it;  'for  his 
loss  of  title  cannot,  under  such  circumstances,  be  asserted  to  be  to  his 
prejudice;  since  it  is  by  his  consent;  and  otherwise  the  purchaser 
would  be  deceived  into  the  bargain.  "  Creditor,  qui  permittit  rem 
venire,  pignus  dimittit  (g).  Si  consensit  venditioni  creditor,  liberatur 
hypotheca  (h).  Si  in  venditione  pignoris  eonsenserit  creditor,  vel  ut 
debitor  hanc  rem  permutet,  vel  donet,  vel  in  dotem  det;  dicendum 
erit,  pignus  liberari,  nisi  salva  causa  pignoris  sui,  consensit  vel  ven- 
ditioni vel  eseteris  "  (i).  But  as  to  what  shall  be  deemed  a  consent,  the 
Roman  law  is  very  guarded.  For  it  is  there  said,  that  we  are  not  to 
take  for  a  consent  of  the  creditor  to  an  alienation  of  the  pledge,  the 
knowledge  which  he  may  have  of  it;  nor  the  silence  which  he  may 
keep  after  he  knows  it;  as,  if  he  knows  that  his  debtor  is  about 
selling  a   house,   which   is   mortgaged  to  him,    and  he   says  nothing 

(d)  Northern  Counties  of  England  Fire  Insurance  Company  v.  Whipp,.26  Ch.  D. 
494.  See  Farrand  v.  Yorkshire  Bank,  40  Ch.  D.  182.  See  also  Carritt  v.  Real  & 
Personal  Advance  Co.,  42  Ch.  D.  263;  Walker  v.  Lirrum,  [1907]  2  Ch.  104. 

(e)  Blackwood  v.  London  Chartered  Bank  of  Australia,  L.  E.  5  P.  C.  Ill ;  Taylor 
V.  Russell,  [1892]  A.  C.  244. 

(/)  Phillips  V.  Phillips,  4  De  G.  P.  &  J.  208;  Taylor  v.  Russell,  [1892]  A.  C.  244. 

(3)  Dig.  Lib.  50,  tit.  17,  f.  158. 

Ih)  Dig.  Lib.  20,  tit.  6,  f.  7 ;  Pothier,  Pand.  Lib.  20,  tit.  6,  art.  2,  n.  21. 

(i)  Dig.  Lib.  20,  f.  4,  §  1. 


160  EQUITY   JURISPRUDENCE.  [CH.    VII. 

about  it.  But,  in  order  to  deprive  him  of  his  right,  it  is  necessary 
that  it  should  appear  by  some  act  that  he  knows  what  is  doing  to  his 
prejudice,  and  consents  to  it;  or,  that  there  is  some  ground  to  charge 
him  with  dishonesty  for  not  having  declared  his  right  when  he  was 
under  an  obligation  to  do  it,  by  which  the  purchaser  was  misled. 
Thus,  if  upon  the  alienation,  the  debtor  declares  that  the  property  is 
not  encumbered,  and  the  creditor  knowingly  signs  the  contract,  as  a 
party  or  witness,  thereby  rendering  himself  an  accomplice  in  the 
false  affirmation,  he  will  be  bound  by  the  alienation.  But  the  mere 
signature  of  the  creditor,  as  a  witness  to  a  contract  of  alienation, 
will  not  of  itself  bind  him,  unless  there  are  circumstances  to  show 
that  he  knew  the  contents,  and  acted  disingenuously  and  dishonestly 
by  the  purchaser  (fc).  "  Non  videtur  consensisse  creditor,  si,  sciente 
eo,  debitor  rem  vendiderit,  cum  ideo  passus  est  venire,  quod  sciebat, 
ubique  pignus  sibi  durare.  Sed  si  subscripserit  forte  in  tabulis 
emptionis  consensisse  videtur,  nisi  manifest  appareat  deeeptum 
esse  "  (l). 

§  395.  Another  class  of  constructive  frauds  consists  of  those  where 
a  person  purchases  with  full  notice  of  the  legal  or  equitable  title  of 
other  persons  to  the  same  property.  In  such  cases  he  will  not  be 
permitted  to  protect  himself  against  such  claims;  but  his  own  title 
will  be  postponed,  and  made  subservient  to  theirs  (m).  It  would  be 
gross  injustice  to  allow  him  to  defeat  the  just  rights  of  others  by  his 
own  iniquitous  bargain.  He  becomes,  by  such  conduct,  paHiceps 
criminis  with  the  fraudulent  grantor;  and  the  rule  of  equity,  as  well 
as  of  law,  is,  "  Dolus  et  fraus  nemini  patrocinari  debent  "  (n).  And  in 
all  such  cases  of  purchasers  with  notice,  courts  of  equity  will  hold 
the  purchaser  a  trustee  for  the  benefit  of  the  persons  whose  rights  he 
has  thus  sought  to  defraud  or  defeat  (o).  Thus,  if  title-deeds  should  be 
deposited  as  a  security  for  money  (which  would  operate  as  an  equitable 
mortgage),  and  a  creditor,  knowing  the  fact,  should  subsequently  take 
a  mortgage  of  the  same  property,  he  would  be  postponed  to  the 
equitable  mortgage  of  the  prior  creditor;  and  the  notice  would  raise 
a  trust  in  him  to  the  amount  of  such  equitable  mortgage  (p).  So, 
if  a  mortgagee,  with  notice  of  a  trust,  should  get  a  conveyance  from 
the  trustee,  in  order  to  protect  his  mortgage,  he  would  not  be  allowed 
to  derive  any  benefit  from  it;  but  he  would  be  held  to  be  subject  to 
the  original  trust,  in  the  same  manner  as  the  trustee.     For,  it  has 

(k)  Domat,  B.  3,  tit.  1,  §  7,  art.  15,  and  Strahan's  note. 

(l)  Dig.  Lib.  20,  tit.  6,  f.  8,  §  15;  Pothier,  Pand.  Lib.  20,  tit.  6,  art.  2,  n.  26,  27: 

(m)  Eyre  v.  Dolphin,  2  Ball  &  B.  290;  Trinidad  Asphalte  Go.  v.  Coryat,  [1896] 
A.  C.  687.  The  anomalous  case  of  a  doweress — see  Maundrell  v.  Maundrell,  10  Ves. 
246 — is  now  obsolete;  8  &  9  Vict.  u.  112  (the  Satisfied  Terms  Act). 

(n)  3  Co.  78. 

(o)  Maundrell  v.  Maundrell,  10  Ves.  260,  261,  270. 

(p)  Birch  V.  Ellames,  2  Anst.  427;  Hiern  v.  Mill,  13  Ves.  114;  Agra  Bank  v. 
Barry,  L.  R.  7  H.  L.  135. 


§  395 397.]  CONSTRUCTIVE  FRAUD.  161 

been  significantly  said,  that  although  a  purchaser  may  buy  an  incum- 
brance, or  lay  hold  on  any  plank  to  protect  himself,  yet  he  shall  not 
protect  himself  by  the  taking  of  a  conveyance  from  a  trustee,  with 
notice  of  the  trust;  for  he  hereby  becomes  a  trustee;  and  he  must 
not,  to  get  a  plank  to  save  himself,  be  guilty  of  a  breach  of  trust  (g). 
But  a  trust  or  equity,  to  affect  the  conscience  of  him  who  has  got  in 
the  legal  estate,  must  be  a  trust  or  equity,  not  in  favour  of  some 
third  person  who  may  have  no  care  or  desire  to  insist  upon  it,  but  a 
trust  or  equity  in  favour  of  the  person  against  whom  the  legal  estate 
is  set  up  (r). 

§  396.  The  same  principle  applies  to  cases  of  a  contract  to  sell 
lands,  or  to  grant  leases  thereof.  If  a  subsequent  purchaser  has 
notice  of  the  contract,  he  is  liable  to  the  same  equity,  and  stands  in 
the  same  place,  and  is  bound  to  do  the  same  acts,  which  the  person 
who  contracted,  and  whom  he  represents,  would  be  bound  to  do  (s). 

§  397.  It  is  upon  the  same  ground,  that,  in  counties  where  the 
registration  of  conveyances  is  required,  in  order*  to  make  them  perfect 
titles  against  subsequent  purchasers,  if  a  subsequent  purchaser  has 
notice,  at  the  time  of  his  purchase,  of  any  prior  unregistered  con- 
veyance, he  shall  not  be  permitted  to  avail  himself  of  his  title  against 
that  prior  conveyance  (f).  The  object  of  all  acts  of  this  sort  is,  to 
secure  subsequent  purchasers  and  mortgagees  against  prior  secret 
conveyances  and  incumbrances.  But  where  such  purchasers  and 
mortgagees  have  notice  of  any  prior  conveyance,  it  is  impossible  to 
hold  that  it  is  a  secret  conveyance,  by  which  they  are  prejudiced. 
On  the  other  hand,  the  neglect  to  register  a  prior  conveyance  is  often 
a  matter  of  mistake,  or  of  overweening  confidence  in  the  grantor ; 
and  it  would  be  a  manifest  fraud,  to  allow  him  to  avail  himself  of  the 
power,  by  any  connivance  with  others,  to  defeat  such  prior  convey- 
ance (m).  The  ground  of  the  doctrine  is  (as  Lord  Hardwicke  has 
remarked)  plainly  this:  "That  the  taking  of  a  legal  estate,  after 
notice  of  a  prior  right,  makes  a  person  a  maid  fide  purchaser;  and 
not  that  he  is  not  a  purchaser  for  a  valuable  consideration  in  every 

(g)  Saunders  v.  Dehew,  2  Vem.  271;  Timson  v.  Ramsbottom,  2  Keea  36.  This 
is  sometimes  termed  the  tabula  in  naufragio,  and  must  be  limited  as  in  the  subsequent 
text. 

(r)  Taylor  v.  Russell,  [1892]  A.  C.  244. 

(s)  Crofton  v.  Ormsby,  2  Scho.  &  L.  583;  Daniels  v.  Davison,  16  Ves.  249;  17 
Ves.  438;  Allen  v.  Anthony,  1  Mer.  282. 

(t)  These  are  the  Yorkshire  Eegistry  Acts,  1884  and  1885,  7  Anne,  c.  20,  affecting 
the  County  of  Middlesex.  By  the  54  &  56  Vict.  t.  64,  the  Middlesex  Eegistry  has 
been  transferred  to  the  Land  Eegistry  established  under  the  Land  Transfer  Act,  1875. 
There  is  also  a  small  district  affected  by  the  15  Chas.  II.  c.  17,  commonly  known  as 
the  Bedford  Level  Act.  Le  Neve  v.  Le  Neve,  3  Atk.  646;  Rolland  v.  Hart,  L.  E.  6 
Ch.  678. 

(u)  Le  Neve  v.  Le  Neve,  3  Atk.  646;  Agra  Bank  v.  Barry,  L.  E.  7  H.  L.  135; 
Lee  v.  Clutton,  46  L.  J.  Ch.  48.  See  Benham  v.  Keane,  3  De  G.  P.  &  J.  318;  Lord 
Ashburton  v.  Nocton,  [1915]  1  Ch.  274. 

H.J.  11 


162  EQUITY  JURISPRUDENCE.  [CH.    VII. 

other  respect.  This  is  a  species  of  fraud  and  dolus  malus  itself;  for 
he  knew  the  first  purchaser  had  the  clear  right  of  the  estate;  and, 
after  knowing  that,  he  takes  away  the  right  of  another  person,  by 
getting  the  legal  title  {x).  And  this  exactly  agrees  with  the  definition 
of  the  civil  law  of  dolus  malus  "{y).  "  Now,  if  a  person  does  not  stop 
his  hand,  but  gets  the  legal  estate,  when  he  knows  the  equity  was  in 
another  machinatur  ad  circumveniendum  "(a). 

§  398.  This  doctrine,  as  to  postponing  registered  to  unregistered 
conveyances  upon  the  ground  of  notice,  has  broken  in  upon  the  policy 
of  the  Eegistration  Acts  in  no  small  degree;  for  a  registered  convey- 
ance stands  upon  a  different  footing  from  an  ordinary  conveyance. 
It  has,  indeed,  been  greatly  doubted  whether  courts  ought  ever  to 
have  suffered  the  question  of  notice  to  be  agitated  as  against  a  party 
who  has  duly  registered  his  conveyance.  But  they  have  said  that 
fraud  shall  not  be  permitted  to  prevail.  There  is,  however,  this 
qualification  upon  the  doctrine,  that  it  shall  be  available  only  in  cases 
where  the  notice  is  so  clearly  proved  as  to  make  it  fraudulent  in  the 
purchaser  to  take  and  register  a  conveyance,  in  prejudice  to  the 
known  title  of  the  other  party  (a). 

§  399.  What  shall  constitute  notice,  in  cases  of  subsequent  pur- 
chasers, is  a  point  of  some  nicety,  and  resolves  itself,  sometimes  into 
matter  of  fact,  and  sometimes  into  matter  of  law  (b).  Notice  may  be 
either  actual  and  positive,  or  it  may  be  implied  and  constructive  (c). 
Actual  notice  requires  no  definition;  for  in  that  case  knowledge  of 
the  fact  is  brought  directly  home  to  the  party.  Constructive  notice 
is  in  its  nature  no  more  than  evidence  of  notice,  the  presumption  of 
which  is  so  violent,  that  the  court  will  not  even  allow  of  its  being 
controverted  (d).  There  must  not  be,  in  the  language  of  one  very  able 
judge,  "  fraudulent  and  wilful  blindness  "  or  "  fraudulent  blind- 
ness "  (e).  Or,  as  has  been  elsewhere  said  by  the  same  authority,  con- 
structive notice  is  knowledge  imputed  by  the  court  on  presumption,  too 
strong  to  be  rebutted,  that  the  knowledge  must  have  been  com- 
municated (/). 

(x)  he  Neve  v.  Le  Neve,  3  Atk.  646,  and  cases  before  cited.  So  in  the  late  case 
o£  Kettlewell  v.  Watson,  26  Ch.  D.  501,  it  was  held  that  a  purchaser  of  land  in  a 
registered  county  is  bound  to  inquire  for  and  examine  the  deed  and  documents, 
memorials  of  which  are  registered. 

(y)  Dig.  Lib.  4,  tit.  3.  f.  2;  ibid.  Lib.  2,  tit.  U,  §  9. 

(z)  Le  Neve  v.  Le  Neve,  3  Atk.  646. 

(a)  Wyatt  v.  Banoell,  19  Ves.  439;  Chadwick  v.  Turner,  L.  E.  1  Ch.  310; 
Holland  v.  Hart,  L.  E.  6  Ch.  678;  Lee  v.  Glutton,  46  L.  J.  Ch.  48. 

(b)  See  post,  §  1047,  1067. 

(c)  In  a  treatise  like  the  present,  it  is  impracticable  to  do  more  than  to  glance  at 
topics  of  this  nature.  The  learned  reader  will  find  full  information  on  the  subject  in 
treatises  which  profess  to  examine  it  at  large.  See  Lord  St.  Leonards'  Vendors  and 
Purchasers,  14th  ed.  ch.  22,  §  4,  p.  727. 

(d)  Plumb  v.  Fluitt.  2  Anst.  438,  per  Eyre,  C.B. 

(e)  Jones  v.  Smitli,  1  Hare,  at  pp.  56  and  60,  per  Wigram,  V.-C. 
(/)  Hewitt  V.  Looseinore,  9  Hare  449. 


§  398 — 400a.]  ooisstructive  fraud.  163 

§  400.  An  illustration  of  this  doctrine  of  constructive  notice  is 
where  the  party  has  possession  or  knowledge  of  a  deed  under  which 
he  claims  his  title,  and  it  recites  another  deed  which  shows  a  title  in 
some  other  person ;  there  the  court  will  presume  him  to  have  notice 
of  the  contents  of  the  latter  deed,  and  will  not  permit  him  to  intro- 
duce evidence  to  disprove  it  {g).  And  generally  it-  may  be  stated,  as 
a  rule  on  this  subject,  that  where  a  purchaser  cannot  make  out  a  title 
but  by  a  deed  which  leads  him  to  another  fact,  he  shall  be  presumed 
to  have  knowledge  of  that  fact  (h).  So  the  purchaser  is,  in  like  manner, 
supposed  to  have  knowledge  of  the  instrument  under  which  the  party 
with  whom  he  contracts,  as  executor,  or  trustee,  or  appointee,  derives 
his  power  (i).  Indeed,  the  doctrine  is  still  broader;  for,  whatever  is 
sufficient  to  put  a  party  upon  inquiry  (that  is,  whatever  has  a 
reasonable  certainty  as  to  time,  place,  circumstances,  and  persons), 
is,  in  equity,  held  to  be  good  notice  to  bind  him  (k).  Thus,  notice  of  a 
lease  will  be  notice  of  its  contents  (I).  So,  if  a  person  should  purchase 
an  estate  from  the  owner,  knowing  it  to  be  in  the  possession  of 
tenants,  he  is  bound  to  inquire  into  the  estate  (•m)  which  these  tenants 
have,  and,  therefore,  he  is  affected  with  notice  of  all  the  facts  as  to 
their  estates.  It  is  only  a  person  in  possession  wiio  can  enforce  his 
rights,  for  inquiry  would  produce  an  answer  defining  his  claim,  but  a 
purchaser  is  not  fixed  with  notice  of  the  proprietary  rights  of  a  person 
under  whom  the  party  in  possession  claims,  still  less  of  a  stranger  to 
the  title  under  which  the  party  in  possession  claims  (n). 

§  400a.  The  text  of  the  learned  author  has  not  been  modified  in 
any  material  respect  in  the  two  preceding  sections.  Modern  practice 
divides  notice  into  three  categories — ^actual,  constructive,  and  imputed. 
Actual  notice  is  knowledge  acquired  personally  by  the  party  who  is 
fixed  with  notice ;  constructive  notice  is  notice  of  facts  or  deductions 
which  a  party  is  deemed  to  have  acquired  by  reason  of  his  knowledge  or 
actual  notice  of  other  facts ;  imputed  notice  (o),  which  is  sometimes,  but 
inaccurately,  termed  constructive  notice,  is  that  which  the  law  imputes 
to  a  party  who  employs  an  agent,  and  the  notice  which  the  agent  has 

(g)  Hewitt  v.  Loosemore,  9  Hare  449. 

(h)  Parker  v.  Brooke,  9  Ves.  583;  Smith  v.  Capron,  7  Hare  185;  Patman  v. 
Harland,  17  Ch.  D.  353.  This  doctrine,  however,  is  to  be  received  with  some  qualifica- 
tions. For  though  a  deed  disclosing  a  trust  is  in  the  chain  of  title,  and  would  have  to 
be  shown  in  defence  of  an  action  at  law,  the  defence  of  bond  fide  purchaser  without 
notice  will  avail  in  equity,  where  knowledge  of  it  was  fraudulently  withheld.  Pilcher 
V.  Rawlins,  L.  E.  7  Ch.  259. 

(t)  Mead  v.  Lord  Orrery,  3  Atk.  238;  Sugden  on  Vendors  and  Purchasers,  ch.  17, 
§  2.     See  post,  §  422. 

(fe)  Parker  v.  Brooke,  9  Ves.  583;  Daniels  v.  Davison,  16  Ves.  250;  17  Ves.  433; 
Eyre  v.  Dolphin,  2  Ball  &  B.  290. 

(I)  Hall  V.  Smith,  14  Ves.  426. 

(m)  Daniels  v.  Davison,  16  Ves.  249;  17  Ves.  433;  Allen  v.  Anthony,  1  Meriv.  282. 

(n)  Miles  v.  Langley,  1  Russ.  &  M.  39,  affirmed;  2  Buss.  &  M.  626;  Hunt  v. 
Luck,  [1902]  1  Ch.  428. 

(o)  Espin  V.  Pemberton,  3  De  G.  &  J.  547,  554,  per  Lord  Chelmsford,  L.C. 


164  EQUITY  JURISPRUDENCE.  [CH.    VII. 

may  itself  be  actual  or  constructive.  The  doctrine  of  imputed  notice 
is  not  one  peculiar  to  courts  of  equity.  "  If  a  party  employs  an  agent 
who  has  full  knowledge  of  circumstances,  it  must  be  presumed  the 
principal  has  the  same  knowledge  "  (p).  But  the  converse  does  not 
hold  good  in  equity,  and  at  the  common  law  a  party  with  knowledge 
could  not  rely  upon  the  ignorance  of  his  agent  (g). 

§  400b.  By  a  series  of  refinements  the  Court  of  Chancery  had  come 
to  fix  parties  who  employed  an  agent  with  constructive  notice  of  facts 
which  the  agent  might  once  have  known,  but  had  certainly  long  since 
forgotten.  To  restore  the  law  within  limits  that  should  not  work  an 
injustice  to  purchasers  was  partly  the  object  of  section  3  of  the  Con- 
veyancing Act,  1882  (45  &  46  Vict.  c.  39),  which  now  regulates  the 
circumstances  under  which  a  purchaser  shall  be  deemed  to  be  fixed 
with  notice.  It  is  in  these  terms — "  (1)  a  purchaser  shall  not  be  pre- 
judicially affected  by  notice  of  any  instrument,  fact,  or  thing,  unless 
(i.)  It  is  within  his  own  knowledge,  or  would  have  come  to  his  know- 
ledge, if  such  inquiries  and  inspections  had  been  made  as  ought 
reasonably  to  have  been  made  by  him ;  or  (ii.)  In  the  same  transaction 
with  respect  to  which  a  question  of  notice  to  the  purchaser  arises,  it 
has  come  to  the  knowledge  of  his  counsel  as  such,  or  of  his  solicitor  or 
other  agent  as  such,  or  would  have  come  to  the  knowledge  of  his 
solicitor  or  other  agent  as  such,  if  such  inquiries  and  inspections 
had  been  made  as  ought  reasonably  to  have  been  made  by  the 
solicitor  or  other  agent.  (2)  This  section  shall  not  exempt  a 
purchaser  from  any  liability  under,  or  any  obligation  to  perform 
or  observe  any  covenant,  condition,  provision,  or  restriction  con- 
tained in  any  instrument  under  which  his  title  is  derived,  mediately 
or  immediately,  and  such  liability  or  obligation  may  be  enforced  in 
the  same  manner,  and  to  the  same  extent,  as  if  this  section  had  not 
been  enacted.  (3)  A  purchaser  shall  not  be  affected  by  reason  of 
anything  in  this  section  contained  where  he  would  not  have  been  so 
affected  if  this  section  had  not  been  enacted.  (4)  This  section  applies 
to  purchases  made  either  before  or  after  the  commencement  of  this 
Act  (r).  And  by  the  definition  clause  (section  1)  of  the  same  statute : 
purchaser  includes  a  lessee  or  mortgagee,  or  an  intending  purchaser, 
lessee,  or  mortgagee,  or  other  person,  who,  for  valuable  consideration, 
takes  or  deals  for  property,  and  purchase  has  a  meaning  corresponding 
with  that  of  purchaser."  Section  3  does  not  affect  the  test  of  liability 
in  equivocal  cases,  namely,  that  a  person  is  absolved  if  he  fails  to 
pursue  an  inquiry  acting  in  reliance  upon  an  answer  which  is  in  fact 
false,  but  that  he  is  fixed  with  liability  if  he  abstains  from  all  inquiry, 

(p)  Doe  d.  Whitaker  v.  Hales,  7  Bing.  322,  325,  per  Tindal,  Ch.  J. 
iq)  Levick  v.  Epsom  ri  Leatherhead  Ry.,  1  L.  T.  (n.s.)  60. 
(r)  In  re  Cousins,  81  Ch.  D.  671. 


§  400b 402.]  CONSTRUCTIVE  FRAUD.  165 

for  it  cannot  be  assumed  that  a  false  answer  or  one  leading  to  no 
result  would  have  been  returned  (s). 

§  400  c.  The  critical  times  for  receiving  notice  for  the  purpose  of 
afiecting  a  purchaser  with  the  proprietary  rights  of  another  are  the 
parting  with  his  money,  and  the  taking  of  his  conveyance  (t). 

§  401.  How  far  the  registration  of  a  conveyance,  in  countries  where 
such  registration  is  authorized  and  required  by  law,  shall  operate  as 
constructive  notice  to  subsequent  purchasers,  by  mere  presumption 
of  law,  independent  of  any  actual  notice,  has  been  much  discussed. 
It  is  not  doubted  that  a  prior  conveyance,  duly  registered,  operates 
to  give  full  effect  to  the  legal  and  equitable  estate  conveyed  thereby, 
against  subsequent  conveyances  of  the  same  legal  and  equitable 
estate  (m).  But  the  question  becomes  important  as  to  other  collateral 
effects,  such  as  defeating  the  right  of  tacking  of  mortgages,  and  other 
incidentally  accruing  equities  between  the  different  purchasers.  For, 
if  the  mere  registry,  in  such  cases,  without  actual  knowledge  of  the 
conveyance,  operates  as  constructive  notice,  it  shuts  out  many  of 
those  equities  which  otherwise  might  have  an  obligatory  priority. 
It  has  been  truly  remarked,  that  there  is  a  material  difference 
between  actual  notice  and  the  operation  of  the  Eegistry  Acts.  Actual 
notice  may  bind  the  conscience  of  the  parties ;  the  operation  of  the 
Eegistry  Acts  may  bind  their  title,  but  not  their  conscience  (x). 

§  402.  The  doctrine  seems  at  length  to  be  settled,  that  the  mere 
registration  of  a  conveyance  shall  not  be  deemed  constructive  notice 
to  subsequent  purchasers,  but  that  actual  notice  must  be  brought 
home  to  the  party,  amounting  to  fraud  (y).  The  subject  certainly  is 
attended  with  no  inconsiderable  difficulty.  Some  learned  judges 
have  expressed  a  doubt,  whether  courts  of  equity  ought  not  to  have 
said,  that  in  all  cases  of  a  public  registry,  which  is  a  known  reposi- 
tory for  conveyances,  a  subsequent  purchaser  ought  to  search,  or  be 
bound  by  notice  of  the  registry,  in  the  same  way  as  he  would  be  by 
a  decree  in  equity,  or  by  a  judgment  at  law  (z).  Other  learned  judges 
have  intimated  a  different  opinion;  assigning  as  a  reason,  that  if  the 
registration  of  the  conveyance  should  be  held  constructive  notice,  it 
must  be  notice  of  all  that  is  contained  in  the  conveyance ;  and,  then, 

(s)  S-mith  V.  Jones,  1  Hare  43;  affirmed,  1  Ph.  244;  Ware  v.  Lord  Egmont, 
4  De  G.  M.  &  Q.  460;  Bailey  v.  Barnes,  [1894]  1  Ch.  25. 

(t)  Jackson  v.  Rome,  4  Russ.  514;  further  proceedings,  3  L.  J.  0.  S.  Ch.  32; 
Collinson  v.  Lister,  7  De  G.  M.  &  G.  634. 

(«)  Wrightsm  v.  Hudson,  2  Eq.  Abr.  609,  pi.  7. 

{x)  Underwood  v.  Courtown,  2  Sch.  &  Lefr.  66.  See  Latouche  v.  Dunsany, 
1  Sch.  &  Lefr.  137. 

(y)  Wyatt  v.  Barwell,  19  Ves.  435;  Chadwick  v.  Turner,  L.  R.  1  Ch.  310; 
Rolland  v.  HaH,  L.  R.  6  Ch.  678 ;  Lee  v.  Glutton,  46  L.  J.  Ch.  48. 

(z)  Morecock  v.  Dickens,  Ambler  480;  Hine  v.  Dodd,  2  Atk.  275  ;  Sugden,  Vendors 
and  Purchasers,  ch.  16,  17. 


166  EQUITY  JURISPRUDENCE.  [CH.    VII. 

subsequent  purchasers  would  be  bound  to  inquire  after  the  contents, 
the  inconveniences  of  which  cannot  but  be  deemed  exceedingly 
great  (a).  The  question  seems  first  to  have  arisen  in  a  case  of  the 
tacking  of  mortgages,  about  the  year  1730;  and  it  was  then  decided, 
by  Lord  Chancellor  King,  that  the  mere  registration  of  a  second 
mortgage  did  not  prevent  a  prior  mortgagee  from  tacking  a  third 
mortgage,  when  he  had  no  actual  notice  of  the  existence  of  the 
second  mortgage  (b).  This  decision  has  ever  since  been  steadily 
adhered  to,  perhaps  more  from  its  having  become  a  rule  of  property, 
than  from  a  sense  of  its  intrinsic  propriety. 

§  405.  It  is  upon  different  grounds,  that  a  purchase  made  of 
land  (c)  actually  in  Htigation,  pendente  lite,  for  a  valuable  considera- 
tion, and  without  any  express  or  implied  notice  in  point  of  fact,  affects 
the  purchaser  in  the  same  manner  as  if  he  had  such  notice ;  and  he 
will  accordingly  be  so  far  bound  by  the  judgment  or  decree  as  not  to  be 
entitled  to  defeat  the  main  object  of  the  suit  {d). 

§  406.  Ordinarily,  it  is  true  that  the  judgment  of  a  court  binds 
only  the  parties  and  their  privies  in  representation  or  estate.  But  he 
who  purchases  during  the  pendency  of  an  action,  is  held  bound  by 
the  judgment  that  may  be  made  against  the  person  from  whom  he 
derives  title.  The  litigating  parties  are  exempted  from  taking  any 
notice  of  the  title  so  acquired;  and  such  purchaser  need  not  be  made 
a  party  to  the  action  (e).  "Where  there  is  a  real  and  fair  purchase, 
without  any  notice,  the  rule  may  operate  very  hardly.  But  it  is  a 
rule  founded  upon  a  great  public  policy ;  for  otherwise,  alienations 
made  during  a,n  action  might  defeat  its  whole  purpose,  and  there 
would  be  no  end  to  litigation.  And  hence  arises  the  maxim,  pendente 
lite,  nihil  innovetur ;  the  effect  of  which  is  not  to  annul  the  conveyance, 
but  only  to  render  it  subservient  to  the  rights  of  the  parties  in  the 
htigation  (/).  As  to  the  rights  of  these  parties,  the  conveyance  is 
treated  as  if  it  never  had  any  existence;  and  it  does  not  vary  them  (g). 
By  the  2  &  3  Vict.  c.  11,  s.  7,  it  was  enacted  that  a  lis  pendens  should 
not  bind  a  purchaser  or  mortgagee  without  express  notice  thereof, 
unless  and  until  it  is  duly  registered,  and  the  registration  to  be 
binding  must  be  repeated  every  five  years.  And  the  court  before 
whom  the  litigation  is  pending  may,  by  30  &  31  Vict.  c.  47,  s.  2,  on 


(a)  Latouche  v.  Dunsany,  1  Sch.  &  Lefr.  157;  Underwood  v.  Cowrtown,  2  Sch.  & 
Lefr.  64,  66;  Pentland  v.  Stokes,  2  Ball  &  B.  75. 

(b)  Bedford  v.  Backhouse,  2  Eq.  Abr.  615,  pi.  12;  s.P.   Wrightson  v.  Hudson, 
2  Eq.  Abr.  609,  pi.  7  ;  Cator  v.  Cooly,  1  Cox  182;  Wiseman  v.  Westland,  1  Y.  &  J.  117. 

(c)  Wigram  v.  Buckley,  [1894]  3  Ch.  483. 

(d)  Bellamy  v.  Sabine,  1  Dc  G.  &  J.  666 ;  Price  v.  Price,  35  Ch.  D.  297. 

(e)  Bishop  of  Winchester  v.  Paine,  11  Vea.  195;  Metcalf  v.  Pulvertoft,  2  Ves.  & 
B.  205. 

(/)  Co.  Litt.  224  b;  Metcalf  v.  Pulvertoft,  2  Ves.  &  B.  199;  Gaskeld  v.  Durdin, 
2  Bail  &  B.  169;  Price  v.  Price,  35  Ch.  D.  297. 

(g)  Bishop  of  Winchester  v.  Paine,  11  Ves.  194. 


§  405 409.]  CONSTRUCTIVE  FRAUD.  167 

the  determination  of  the  lis  pendens,  or  even  during  pendency,  if 
satisfied  that  the  litigation  is  not  prosecuted  bond  fide,  order  the 
registration  to  be  vacated  without  the  consent  of  the  party  by  whom 
the  lis  pendens  was  registered.  In  a  late  case  (h)  it  was  held  that  in  an 
action  by  an  equitable  mortgagee  for  sale  or  foreclosure,  the  court 
has  power,  on  an  ex  parte  application  of  the  plaintiff,  to  grant  an 
interim  injunction  to  restrain  dealing  with  the  legal  estate  on  the 
ground  that  a  lis  pendens  is  not  an  adequate  protection  to  the  plaintiff. 

§  407.  In  general,  a  judgment  is  not  constructive  notice  to  any 
persons  who  are  not  parties  or  privies  to  it;  and,  therefore,  other 
persons  are  not  presumed  to  have  notice  of  its  contents.  A  judgment 
was  made  a  general  charge  upon  lands  of  the  debtor  by  the  Statute  of 
"Westminster  2.  The  right  so  acquired  was  a  legal  right,  and  with  that 
a  court  of  equity  could  not  interfere  (i).  Provisions  have  intermittently 
been  made  for  the  registration  of  judgments  and  relieving  purchasers 
from  the  effect  of  unregistered  judgments.  These  statutes  have  since 
been  repealed  and  according  to  the  law  now  in  force  the  writ  of  execu- 
tion is  registered,  and  from  the  date  of  registration  of  the  writ  of  execu- 
tion the  land  is  bound,  although  further  proceedings  may  be  necessary 
to  render  the  land  available  in  execution  (fe). 

§  408.  To  constitute  constructive  notice,  it  is  not  indispensable 
that  it  should  be  brought  home  to  the  party  himself.  It  is  sufficient, 
if  it  is  brought  home  to  the  agent,  solicitor,  or  counsel  of  the  party; 
for,  in  such  cases,  the  law  presumes  notice  in  the  principal,  since  it 
would  be  a  breach  of  duty  in  the  former  not  to  communicate  the 
knowledge  to  the  latter  (I).  But,  in  all  these  cases,  notice  to  bind  the 
principal  should  be  notice  in  the  same  transaction,  or  negotiation ; 
for,  if  the  agent,  solicitor,  or  counsel  was  employed  in  the  same 
thing  by  another  person,  or  in  another  business  or  affair,  and  at 
another  time,  since  which  he  may  have  forgotten  the  facts,  it  would 
be  unjust  to  charge  his  present  principal  on  account  of  such  a  defect 
of  memory  {m).  It  was  significantly  observed  by  Lord  Hardwicke, 
that,  if  this  rule  were  not  adhered  to,  it  would  make  the  titles  of  pur- 
chasers and  mortgagees  depend  altogether  upon  the  memory  of  their 
counsellors  and  agents;  and  oblige  them  to  apply  to  persons  of  less 
eminence  as  counsel,  as  being  less  likely  to  have  notice  of  former 
transactions  (n). 

§  409.  The  doctrine,  which  has  been  already  stated,  in  regard  to 
the  effect  of  notice,   is  strictly  applicable  to  every  purchaser  whose 

(h)  London  and  County  Banking  Company  v.  Lewis,  21  Ch.  D.  401. 

(i)  See  Benham  v.  Keane,  3  De  G.  P.  &  J.  318. 

(k)  Lord  AshbuHon  v.  Nocton,  [1915]  1  Ch.  274. 

(I)  Espin  V.  Pemberton,  3  De  G.  &  J.  547.  See  Berwick  S  Co.  v.  Price,  [1906] 
1  Ch.  682. 

(m)  Fitzgerald  v.  Falconberg ,  Fitzgib.  211.     This  is  now  so  by  statute  ;  see  §  400b. 

()i)  Warrick  v.  Warrick,  3  Atk.  290;  Worsley  v.  Earl  of  Scarborough,  3  Atk.  292; 
Lowther  v.  Carlton,  2  Atk.  242,  292. 


168  EQUITY  JURISPRUDENCE.  [CH.    VII. 

title  comes  into  his  hands,  affected  with  such  notice.  But  it  in  no 
manner  affects  any  such  title  derived  from  another  person,  in  whose 
hands  it  stood  free  from  any  such  taint.  Thus,  a  purchaser  with 
notice  may  protect  himself  unless  he  is  a  trustee  repurchasing  trust 
property  for  his  own  benefit  (o),  by  purchasing  the  title  of  another  bond 
fide  purchaser  for  a  valuable  consideration  without  notice ;  for,  other- 
wise, such  bond  fide  purchaser  would  not  enjoy  the  full  benefit  of  his 
own  unexceptionable  title.  Indeed,  he  would  be  deprived  of  the 
marketable  value  of  such  a  title;  since  it  would  be  necessary  to  have 
public  notoriety  given  to  the  existence  of  a  prior  incumbrance,  and 
no  buyer  could  be  found,  or  none  except  at  a  depreciation  equal  to 
the  value  of  the  incumbrance.  For  a  similar  reason,  if  a  person  who 
has  notice,  sells  to  another  who  has  no  notice,  and  is  a  bond  fide 
purchaser  for  a  valuable  consideration,  the  latter  may  protect  his 
title,  although  it  was  affected  with  the  equity  arising  from  notice  in 
the  hands  of  the  person  from  whom  he  derived  it;  for,  otherwise,  no 
man  would  be  safe  in  any  purchase,  but  would  be  liable  to  have  his 
own  title  defeated  by  secret  equities,  of  which  he  could  have  no  possible 
means  of  making  a  discovery. 

§  410.  This  doctrine,  in  both  of  its  branches,  has  been  settled  for 
nearly  two  centuries  and  a  half;  and  it  arose  in  a  case  in  which  A. 
purchased  an  estate,  with  notice  of  an  incumbrance,  and  then  sold  it 
to  B.,  who  had  no  notice;  and  B.  afterwards  sold  it  to  C,  who  had 
notice;  and  the  question  was,  whether  the  incumbrance  bound  the 
estate  in  the  hands  of  C.  The  then  Master  of  the  EoUs  thought,  that 
although  the  equity  of  the  incumbrance  was  gone,  while  the  estate 
was  in  the  hands  of  B.,  yet  it  was  revived  upon  the  sale  to  C.  But 
the  Lord  Keeper  reversed  the  decision,  and  held,  that  the  estate  in  the 
hands  of  C.  was  discharged  of  the  incumbrance,  notwithstanding  the 
notice  of  A.  and  C.  (p).  This  doctrine  has  ever  since  been  adhered 
to  as  an  indispensable  muniment  of  title  (5).  And  it  is  wholly 
immaterial  of  what  nature  the  equity  is,  whether  it  is  a  lien,  or  an 
incumbrance,  or  a  trust,  or  any  other  claim;  for  a  bond  fide  purchase 
of  an  estate,  for  a  valuable  consideration,  purges  away  the  equity  from 
the  estate,  in  the  hands  of  all  persons  who  may  derive  title  under  it, 
with  the  exception  of  the  original  party,  whose  conscience  stands  bound 
by  the  violation  of  his  trust  and  meditated  fraud.  But,  if  the  estate 
becomes  re-vested  in  him,  the  original  equity  will  re-attach  to  it  in  his 
hands  (r). 

§  411.  Indeed,   purchasers  of  this   sort   are   so  much   favoured  in 


(0)  Delves  v.  Gray,  [1902]  2  Ch.  600;  Gordon  v.  Holland,  82  L.  J.  P.  C.  81. 

(p)  Harrison  v.  Forth,  Prec.  Ch.  61. 

(3)  Sweet  V.  Southcote,  2  Bro.  C.  C.  66;  McQueen  v.  Farquhar,  11  Ves:  467; 
Barrow's  Case,  14  Ch.  D.  432;  Wilkes  v.  Spooner,  [1911]  2  K.  B.  473. 

(r)  Bovey  v.  Smith,  1  Vern.  60,  84,  144;  Delves  v.  Gray,  [1902]  2  Ch.  606; 
Gordon  v.  Holland,  82  L.  J.  P.  C.  81. 


§  410 — 413.]  CONSTRUCTIVE  FRAUD.  169 

equity,  that  it  may  be  stated  to  be  a  doctrine  now  generally  established, 
that  a  bond  fide  purchaser  for  a  valuable  consideration,  without  notice 
of  any  defect  in  his  title  at  the  time  of  his  purchase,  may  lawfully  buy 
in  any  mortgage,  or  other  incumbrance,  upon  the  same  estate  for  his 
protection.  If  he  can  defend  himself  by  any  of  them  at  law,  his 
adversary  will  have  no  help  in  equity  to  set  these'  incumbrances  aside ; 
for  equity  will  not  disarm  such  a  purchaser;  but  will  act  upon  the  wise 
policy  of  the  common  law,  to  protect  and  quiet  lawful  possessions,  and 
strengthen  such  titles.  "We  shall  have  occasion,  hereafter,  in  various 
cases,  to  see  the  application  of  this  doctrine. 

§  412.  And  this  naturally  leads  us  to  the  consideration  of  the 
equitable  doctrine  of  tacking,  as  it  is  technically  called,  that  is,  uniting 
securities,  given  at  difierent  times,  so  as  to  prevent  any  intermediate 
purchasers  from  claiming  a  title  to  redeem,  or  otherwise  to  discharge 
one  lien,  which  is  prior,  without  redeeming  or  discharging  the  other 
liens  also,  which  are  subsequent  to  his  own  title  (s).  Thus,  if  a  third 
mortgagee,  without  notice  of  a  second  mortgage,  should  purchase  in 
the  first  mortgage,  by  which  he  would  acquire  the  legal  title,  the  second 
mortgagee  would  not  be  permitted  to  redeem  the  first  mortgage  without 
redeeming  the  third  mortgage  also;  for,  in  such  a  case,  equity  tacks 
both  mortgages  together  in  his  favour.  And,  in  such  a  case,  it  will 
make  no  difference  that  the  third  mortgagee,  at  the  time  of  purchasing 
the  first  mortgage,  had  notice  of  the  second  mortgage;  for  he  is  still 
entitled  to  the  same  protection  (t). 

§  413.  There  is,  certainly,  great  apparent  hardship  in  this  rule; 
for  it  seems  most  conformable  to  natural  justice,  that  each  mortgagee 
should,  in  such  a  case,  be  paid  according  to  the  order  and  priority  of 
his  incumbrances,  and  this  is  the  rule  where  the  legal  estate  is  out- 
standing (m).  The  general  reasoning,  by  which  this  doctrine  is  main- 
tained, is  this :  In  sequali  jure,  melior  est  conditio  possidentis.  Where 
the  equity  is  equal,  the  law  shall  prevail ;  and  he  that  hath  only  a  title 
in  equity  shall  not  prevail  against  a  title  by  law  and  equity  in  another. 
But,  however  correct  this  reasoning  may  be  when  rightly  applied,  its 
applicability  to  the  case  stated  may  reasonably  be  doubted.  It  is 
assuming  the  whole  case,  to  say  that  the  right  is  equal,  and  the  equity 
is  equal.  The  second  mortgagee  has  a  prior  right,  and  at  least  aji  equal 
equity;  and  then  the  rule  seems  justly  to  apply,  that,  where  the 
equities  are  equal,  that  title  which  is  prior  in  time  shall  prevail;  Qui 
prior  est  in  tempore,  potior  est  in  jure  (x). 

(s)  Marsh  v.  Lee,  2  Vent.  337;  Lacey  v.  Ingle,  2  Ph.  413;  Spencer  v.  Pearson, 
24  Beav.  266.     See  Bailey  v.  Barnes,  [1894]  1  Ch.  25. 

(t)  Marsh  v.  Lee,  2  Vent.  337. 

(u)  Frere  v.  Moore,  8  Pri.  475 ;  London  di  County  Bank  v.  Goddard,  [1897]  1  Ch. 
642;  Taylor  v.  Londm  &  County  Bank,  [1901]  2  Ch.  231. 

(x)  The  doctrine  of  tacking  was  abolished  by  the  Vendor  and  Purchaser  Act,  1874, 
but  was  restored  by  the  Land  Transfer  Act,  1875. 


170  EQUITY  JURISPRUDENCE.  [CH.    VII. 

§  414.  It  has  been  significantly  said,  that  it  is  a  plank,  gained  by 
the  third  mortgagee,  in  a  shipwreck,  tabula  in  naufragio  (y).  But, 
independently  of  the  inapplicability  of  the  figure,  which  can  justly 
apply  only  to  cases  of  extreme  hazard  to  life,  and  not  to  mere  seizures 
of  property,  it  is  obvious,  that  no  man  can  have  a  right,  in  consequence 
of  a  shipwreck,  to  convert  another  man's  property  to  his  own  use,  or  to 
acquire  an  exclusive  right  against  a  prior  owner.  The  best  apology 
for  the  actual  enforcement  of  the  rule  is,  that  it  has  been  long  estab- 
lished, and  that  it  ought  not  now  to  be  departed  from,  since  it  has 
become  a  rule  of  property. 

§  415.  Lord  Hardwicke  has  given  the  following  account  of  the 
origin  and  foundation  of  the  doctrine.  "As  to  the  equity  of  this 
court,  that  a  third  incumbrancer,  having  taken  his  security  or  mort- 
gage without  notice  of  the  second  incumbrance,  and  then,  being  puisne, 
taking  in  the  first  incumbrance,  shall  squeeze  out  and  have  satisfaction 
before  the  second ;  that  equity  is  certainly  established  in  general ;  and 
was  so  in  Marsh  v.  Lee,  by  a  very  solemn  determination  by  Lord  Hale, 
who  gave  it  the  term  of  the  creditor's  tabula  in  naufragio.  This  is  the 
leading  case.  Perhaps  it  might  be  going  a  good  way  at  first ;  but  it  has 
been  followed  ever  since;  and,  I  believe,  was  rightly  settled  only  on 
this  foundation  by  the  particular  constitution  of  the  law  of  this  country. 
It  could  not  happen  in  any  other  country  but  this ;  because  the  jurisdic- 
tion of  law  and  equity  is  administered  here  in  different  courts,  and 
creates  different  kinds  of  rights  in  estates.  And,  therefore,  as  courts 
of  equity  break  in  upon  the  common  law,  where  necessity  and  con- 
science require  it,  still,  they  allow  superior  force  and  strength  to  a  legal 
title  to  estates ;  and,  therefore,  where  there  is  a  legal  title  and  equity 
on  one  side,  this  court  never  thought  fit,  that,  by  reason  of  a  prior  equity 
against  a  man,  who  had  a  legal  title,  that  man  should  be  hurt;  and 
this,  by  reason  of  that  force,  this  court  necessarily  and  rightly  allows  to 
the  common  law  and  to  legal  titles.  But  if  this  had  happened  in  any 
other  country,  it  could  never  have  made  a  question ;  for  if  the  law  and 
equity  are  administered  by  the  same  jurisdiction,  the  rule,  Qui  prior 
est  in  tempore,  potior  est  in  jure,  must  hold  "  (z). 

§  416.  Indeed,  so  little  has  this  doctrine  of  tacking  to  commend 
itself,  that  it  has  stopped  far  short  of  the  analogies,  which  would 
seem  to  justify  its  application  (a) ;  and  it  has  been  confined  to  cases 
where  the  party,  in  whose  favour  it  is  allowed,  originally  bond  fide 
advanced  his  money  on  the  security  of  the  land.  Thus,  if  a  puisne 
creditor,  by  judgment,  should  buy  in  a  prior  mortgage,  he  would  not 
be  allowed  to  tack  his  judgment  to  such  a  mortgage,  so  as  to  cut  out 
a  mesne  mortgagee  (&).     The  reason  is  said  to  be,  that  a  creditor  can 

(y)  Marsh  v.  Lee,  2  Vent.  337. 

(z)  Wortley  v.  Birkhead,  2  Ves.  Sen.  573. 

(a)  See  ThorneycToft  v.  Crockett,  2  H.  L.  C.  239. 

(b)  Brace  v.  Duchess  of  Marlborough,  2  P.  Will.  492  to  495 ;  Ex  parte  Knott, 


§    414 419.]  CONSTRUCTIVE   FKAUD.  171 

in  no  just  sense  be  called  a  purchaser;  for  he  does  not  advance  his 
money  upon  the  immediate  credit  of  the  land ;  and,  by  his  judgment,  he 
does  not  acquire  any  right  in  the  land.  He  has  neither  jus  in  re,  nor 
jus  ad  rem ;  but  a  mere  lien  upon  the  land,  which  may,  or  may  not, 
afterwards  be  enforced  upon  it  (c).  But  if,  instead  of  being  a  judgment 
creditor,  he  were  a  third  mortgagee,  and  should  then  purchase  in  a 
prior  judgment,  in  such  case  he  would  be  entitled  to  tack  both  together. 
The  reason  for  the  diversity  is,  that  in  the  latter  case  he  did  originally 
lend  his  money  upon  the  credit  of  the  land;  but  in  the  former  he  did 
not,  but  was  only  a  general  creditor,  trusting  to  the  general  assets  of 
his  debtor  (d). 

§  417.  Further  advances  may  be  tacked  as  against  a  puisne  incum- 
brance of  whose  security  the  legal  mortgagee  has  no  notice  (e),  as  he 
might  in  respect  of  sums  due  upon  a  statute  or  judgment  upon  the 
presumption  that  he  lent  the  further  sum  upon  the  statute  or  judgment 
upon  the  same  security,  although  it  passed  no  present  interest  in  the 
land,  but  gave  a  lien  only  (/). 

§  418.  And  yet,  such  a  prior  mortgagee,  having  a  bond  debt,  has 
never  been  permitted  to  tack  it  against  any  intervening  incumbrancers 
of  a  superior  nature  between  his  bond  and  mortgage ;  nor  against  other 
specialty  creditors ;  nor  even  against  the  mortgagor  himself ;  nor  against 
a  surety;  but  only  against  his  heir,  to  avoid  circuity  of  action  (g).  The 
reason  given  is,  that  the  bond  debt,  except  as  against  the  heir,  is  not  a 
charge  on  the  land.  And  tacking  takes  place  only  when  the  party 
holds  both  securities  in  the  same  right.  For  if  a  prior  mortgagee 
takes  an  assignment  of  a  third  mortgage,  as  a  trustee  only  for  another 
person,  he  will  not  be  allowed  to  tack  two  mortgages  together,  to  the 
prejudice  of  intervening  incumbrancers  (h). 

§  419.  It  cannot  be  denied,  that  some  of  these  distinctions  are 
extremely  thin,  and  stand  upon  very  artificial  and  unsatisfactory 
reasoning.  The  account  of  the  matter  given  by  Lord  Hardwicke  («'),  is 
probably  the  true  one.  But  it  is  a  little  difficult  to  perceive  how  the 
foundation  could  support  such  a  superstructure,   or  rather,   why  the 

11  Ves.  609;  Lacey  v.  Ingle,  2  Ph.  413.  See  Mayor  of  Brecon  v.  Seymour,  26  Beav. 
548. 

(c)  Averall  v.  Wade,  LI.  &  G.  252 ;  Beavan  v.  Earl  of  Oxford,  6  De  G.  M.  &  G. 
507. 

(d)  Higgin  v.  Lyddal,  1  Ch.  Cas.  149;  Mackreth  v.  Symmons,  15  Ves.  354. 

(e)  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  491 ;  Wyllie  v.  Pollen,  3  De  G. 
J.  &  S.  596;  Hopkinson  v.  Bolt,  9  H.  L.  C.  514;  West  v.  Waiiams,  [1899]  1  Ch.  132. 

(/)  Shepherd  v.  Titley,  2  Atk.  352;  Ex  parte  Knott,  11  Ves'.  617;  Lacey  v.  Ingle, 
2  Ph.  413.  , 

(g)  Lowthian'v.  Hasel,  3  Bro.  C.  C.  163;  Morret  v.  Paske,  2  Atk.  51;  Price  v. 
Fastnedge,  Ambler  685,  and  Mr.  Blunt's  note;  Jones  v.  Smith,  2  Ves.  Jun.  376; 
Adams  v.  Glaxton,  6  Ves.  229 ;  Forbes  v.  Jackson,  19  Ch.  D.  615.  See  Thomas  v. 
Thomas,  22  Beav.  341;  Talbot  v.  Frere,  9  Ch.  D.  568. 

(h)  Morret  v.  Paske,  2  Atk.  53. 

(i)  Worthy  v.  Birkhead,  2  Ves.  Sen.  574 ;  ante,  §  415. 


172  EQUITY  JURISPRUDENCE.  [CH.    VII. 

intelligible  equity  of  the  case,  upon  the  principles  of  natural  justice, 
should  not  be  rigorously  applied  to  it.  Courts  of  equity  have  found 
no  difficulty  in  applying  it,  where  the  puisne  incumbrancer  has  bought 
in  a  prior  equitable  incumbrance ;  for  in  such  cases  they  have  declared, 
that  where  the  puisne  incumbrancer  has  not  obtained  the  legal  title ; 
or  where  the  legal  title  is  vested  in  a  trustee ;  or  where  he  takes  in  autre 
droit;  the  incumbrances  shall  be  paid  in  the  order  of  their  priority  in 
point  of  time,  according  to  the  maxim^  above  mentioned  (fc).  The 
reasonable  principle  is  here  adopted,  that  he  who  has  the  better  right  to 
call  for  the  legal  title,  or  for  its  protection,  shall  prevail. 

§  420.  The  civil  law  has  proceeded  upon  a  far  more  intelligible  and 
just  doctrine  on  this  subject.  It  wholly  repudiates  the  doctrine  of 
tacking;  and  gives  the  fullest  effect  to  the  maxim,  Qui  prior  est  in 
tempore,  potior  est  in  jure,  excluding  it  only  in  cases  of  fraud,  or  of 
consent,  or  of  a  superior  equity  (J). 

§  421.  But,  whatever  may  be  thought  as  to  the  foundation  of  the 
doctrine  of  tacking  in  courts  of  equity,  it  is  now  firmly  established. 
It  is,  however,  to  be  taken  with  this  most  important  qualification,  that 
the  party  who  seeks  to  avail  himself  of  it  is  a  bond  fide  purchaser, 
without  notice  of  the  prior  or  intermediate  incumbrance,  at  the  time 
when  he  took  his  security;  for  if  he  then  had  such  notice,  he  has  not 
the  slightest  claim  to  the  protection  or  assistance  of  a  court  of  equity ; 
and  he  will  not  be  allowed  to  tack  the  amount  of  his  subsequent 
advance,  or  by  purchasing  a  prior  incumbrance,  to  tack  his  own  tainted 
mortgage  or  other  title  to  the  latter  (m). 

§  422.  Another  instance  of  the  application  of  this  wholesome 
doctrine  of  constructive  fraud,  arising  from  notice,  may  be  seen  in  the 
dealings  with  executors  and  other  persons,  holding  a  fiduciary  character, 
and  third  persons  colluding  with  them  in  violation  of  their  trust. 
Thus,  purchases  from  executors  of  the  personal  property  of  their  testa- 
tor are  ordinarily  obligatory  and  valid  notwithstanding  they  may  be 
affected  with  some  peculiar  trusts  or  equities  in  the  hands  of  the 
executors.  For  the  purchaser  cannot  be  presumed  to  know  that  the 
sale  may  not  be  required  in  order  to  discharge  the  debts  of  the  testator, 
for  which  they  are  legally  bound,  before  all  other  claims.  But,  if  the 
purchaser  knows  or  must  be  deemed  to  have  known  that  the  executor 
is  wasting  and  turning  the  testator's  estate  into  money,  the  more  easily 
to  run  away  with  it,  or  for  any  other  unlawful  purpose,  he  will  be 
deemed  particeps  criminis,  and  his  purchase  set  aside  as  fraudulent  (n). 

(k)  Barnett  v.  Weston,  12  Ves.  130;  Frere  v.  Moore,  8  Pri.  475 ;  London  £  County 
Bank  v.  Goddard,  [1897]  1  Ch.  642;  Tarjlor  v.  London  &  County  Bank,  [1901]  2  Ch. 
231. 

(0  See  Dig.  Lib.  20,  tit.  4,  f.  16. 

(m)  Brace  v.  Duchess  of  Marlborough,  2  P.  Will.  491,  495;  Hopkinson  v.  Bolt, 
9  H.  L.  C.  574;  West  v.  Williams,  [1899]  1  Ch.  132. 

(n)  Hill  v.  Simpson,  7  Ves.  152;  McLeod  v.  Drummond,  14  Ves.  359;  17  Ves.  153; 
Walker  v.  Taylor,  8  Jur.  N.  S.  681. 


5    420 425.]  CONSTRUCTIVE    FRAUD.  l73 

§  423.  The  reason  for  this  diversity  of  doctrine  has  been  fully 
stated  by  Sir  William  Grant.  "  It  is  true  ' '  (said  he)  ' '  that  executors 
are,  in  equity,  mere  trustees  for  the  performance  of  the  will;  yet  in 
many  respects,  and  for  many  purposes,  third  persons  are  entitled  to 
consider  them  absolute  owners.  The  mere  circumstance  that  they  are 
executors  will  not  vitiate  any  transaction  with  them;  for  the  power 
of  disposition  is  generally  incident,  being  frequently  necessary.  And 
a  stranger  shall  not  be  put  to  examine  whether,  in  the  particular 
instance,  that  power  has  been  discreetly  exercised.  But,  from  that 
proposition,  that  a  third  person  is  not  bound  to  look  to  the  trust  in 
every  respect,  and  for  every  purpose,  it  does  not  follow  that,  dealing 
with  the  executor  for  the  assets,  he  may  equally  look  upon  him  as 
absolute  owner,  and  wholly  overlook  his  character  as  trustee,  when  he 
knows  the  executor  is  applying  the  assets  to  a  purpose  wholly  foreign 
to  his  trust.  No  decision  necessarily  leads  to  such  a  consequence  "  (o). 
The  same  doctrine  is  applied  to  the  cases  of  executors  or  administrators 
colluding  with  the  debtors  to  the  estate,  either  to  retain  or  to  waste 
the  assets;  for,  in  such  cases,  the  creditors  will  be  allowed  to  sue 
the  debtors  directly  in  equity,  making  the  executor  or  administra- 
tor also  a  party  to  the  action,  although,  ordinarily,  the  executor  or 
administrator  only  can  sue  for  the  debts  due  to  the  deceased  (p). 
Indeed,  the  doctrine  may  be  even  more  generally  stated ;  that  he  who 
has  voluntarily  concurred  in  the  commission  of  a  fraud  by  another, 
shall  never  be  permitted  to  obtain  a  profit  thereby  against  those  who 
have  been  thus  defrauded. 

§  424.  It  seems  at  one  time  to  have  been  thought,  that  no  person 
but  a  creditor,  or  a  specific  legatee  of  the  property,  could  question 
the  validity  of  a  disposition  made  of  assets  by  an  executor,  however 
fraudulent  it  might  be.  But  that  doctrine  is  so  repugnant  to  true 
principles,  that  it  could  scarcely  be  maintained  whenever  it  came  to 
be  thoroughly  sifted  (q).  It  is  now  well  understood  that  pecuniary  and 
residuary  legatees  may  question  the  validity  of  such  a  disposition; 
and,  indeed,  residuary  legatees  stand  upon  a  stronger  ground  than 
pecuniary  legatees  generally;  for,  in  a  sense,  they  have  a  lien  on  the 
fund,  and  may  go  into  equity  to  enforce  it  upon  the  fund  (r). 

§  425.  The  author  then  proceeded  to  consider  under  the  present 
head  of  constructive  fraud,  voluntary  conveyances  of  freehold  lands  (s), 
in  regard  to  subsequent  purchasers.  This  class  was  founded,  in  a  great 
measure,    if  not   altogether,    upon   the  provisions   of   the   statute   of 

(o)  Hill  v.  Simpson,  7  Ves.  166. 

(p)  Burroughs  v.  Elton,  11  Ves.  29;  Holland  v.  Prior,  1  Myl.  &  K.  237;  Travis  v.. 
Milne,  9  Hare  141;  Yeatman  v.  Yeatman,  7  Ch.  D.  210. 

(q)  Mead  v.  Lord  Orrery,  3  Atk.  235. 

(r)  Hill  V.  Simpson,  7  "Ves.  152;  McLeod  v.  Drummond,  14  Ves.  859;  s.c.  17  Ves- 
169. 

is)  Price  v.  Jenkins,  5  Ch.  D.  619. 


174  EQUITY  JURISPRUDENCE.  [CH.    VII. 

27  Eliz.  c.  4,  which  did  not  apply  to  personal  estate  (i).  The  object 
of  that  statute  was,  to  give  full  protection  to  subsequent  purchasers 
from  the  grantor,  against  mere  volunteers,  under  prior  conveyances. 
As  betvi^een  the  parties  themselves,  such  conveyances  are  positively 
binding,  and  cannot  be  disturbed;  for  the  statute  does  not  reach  such 
cases  (m). 

§  426.  It  was  for  a  long  period  of  time  a  much  litigated  question 
whether  the  effect  of  the  statute  was  to  avoid  all  voluntary  convey- 
ances (that  is,  all  such  as  were  made  merely  in  consideration  of 
natural  love  or  affection,  or  were  mere  gifts),  although  made  bond 
fide,  in  favour  of  all  subsequent  purchasers,  with  or  without  notice; 
or  whether  it  applied  only  to  conveyances  made  with  a  fraudulent 
intent,  and  to  purchasers  without  notice.  After  no  inconsiderable 
diversity  of  judicial  opinion,  the  doctrine  was  at  length  estabUshed 
(whether  in  conformity  to  the  language  or  intent  of  the  statute  is 
exceedingly  questionable),  that  all  such  conveyances  were  void  as  to 
subsequent  purchasers,  whether  they  were  purchasers  with  or  without 
notice,  although  the  original  conveyance  was  bona  fide,  and  without 
the  slightest  admixture  of  intentional  fraud;  upon  the  ground  that 
the  statute  in  every  such  case  infers  fraud,  and  will  not  suffer  the 
presumption  to  be  gainsaid  (x).  The  doctrine,  however,  was  admitted 
to  be  full  of  difficulties;  and  it  was  accepted  rather  upon  the  pressure 
of  authorities,  and  the  vast  extent  to  which  titles  had  been  acquired 
and  held  under  it,  than  upon  any  notion  that  it  had  a  firm  foundation 
in  reason  and  a  just  construction  of  the  statute.  The  rule  stare  decisis, 
was  here  applied  to  give  repose  and  security  to  titles  fairly  acquired, 
upon  the  faith  of  judicial  decisions  {y).  Eventually  the  legislature 
intervened,  and  by  the  Voluntary  Conveyances  Act,  1893  (56  &  57  Vict, 
c.  21),  voluntary  conveyances  of  freehold  lands  cannot  be  defeated  by 
a  subsequent  sale  for  value  unless  fraudulent  in  fact  in  their  inception. 

§  435.  The  civil  law  proceeded  upon  the  same  enlightened  policy. 
In  the  case  of  alienations  of  movables,  and  immovables,  bond  fide 
purchasers  for  a  valuable  consideration,  having  no  knowledge  of  any 
fraudulent  intent  of  the  grantor  or  debtor,  were  protected.  "  Ait 
praetor;  Quae  fraudationis  causa  gesta  erunt,  cum  eo,  qui  fraudem  non 
ignoraverit,  actionem  dabo  "  (z).  Upon  this,  there  follows  this  com- 
ment. "  Hoc  Edictum  eum  coercet,  qui  sciens  eum  in  fraudem 
creditorum  hoc  facere,  suscepit,  quod  in  fraudem  creditorum  fiebat. 
Quare,  si  quid  in  fraudem  creditorum  factum  sit,  si  tamen  is,  qui  cepit, 
.ignoravit,  cessare  videntur  verba  Edicti  "  (a).     And  the  very  case  is 

(t)  Jones  v.  Groucher,  1  Sim.  &  St.  315. 

(u)  Smith  V.  Garland,  1  Mer.  123;  Johnson  v.  Legard,  T.  &  E.  281. 

(x)  Doe  V.  Manning,  9  East  58. 

iy)  Trowell  v.  Shenton,  8  Ch.  D.  318;  Godfreij  v.  Poole,  13  App.  Cas.  497. 

.(«)  Dig.  Lib.  42,  tit.  8,  f.  1. 

(0)  Ibid.  f.  6,  §  8. 


§  426 — 439.]  CONSTRUCTIVE  FRAUD.  175 

afterwards  put,  of  a  bond  fide  purchaser  from  a  fraudulent  grantee,  the 
validity  of  whose  purchase  is  unequivocally  affirmed.  "  Is,  qui  a 
debitore,  cujus  bona  possessa  sunt,  sciens  rem  emit,  iterum  alii  bona 
fide  ementi  vendidit;  quaesitum  sit,  an  secundus  emptor  conveneri 
potest?  Sed  verier  est  Sabini  sententia,  bona  fide  emptorem  non 
teneri ;  quia  dolus  ei  duntaxat  nocere  debeat,  qui  eum  admisit ;  quemad- 
modum  diximus,  non  teneri  eum,  si  ab  ipso  debitore  ignorans  emerit. 
Is  autem,  qui  dolo  malo  emit,  bona  fide  autem  ementi  vendidit,  in 
solidum  pretium  rei,  quod  accepit,  tenebitur  "  (fa).  The  same  doctrine 
is  fully  recognized  by  Voet  (c).  And  its  intrinsic  justice  is  so  persuasive 
and  satisfactory,  that  whether  derived  from  Roman  sources  or  not,  it 
would  have  been  truly  surprising  not  to  have  found  it  embodied  in  the 
jurisprudence  of  England. 

§  436.  Ind-eed,  the  principle  is  more  broad  and  comprehensive ; 
and,  although  not  absolutely  universal  (for  there  are  anomalies  in  the 
case  of  judgment  creditors,  and  the  case  of  dower)  (d) ;  yet  it  is 
generally  true,  and  applies  to  cases  of  every  sort,  where  an  equity  is 
sought  to  be  enforced  against  a  bond  fide  purchaser  of  the  legal  estate 
without  notice,  or  even  against  a  bond  fide  purchaser,  not  having  the 
legal  estate,  where  he  has  a  better  right  or  title  to  call  for  the 
legal  estate  than  the  other  party.  It  applies,  therefore,  to  cases  of 
accident  and  mistake,  as  well  as  to  cases  of  fraud,  which,  however 
remediable  between  the  original  parties,  are  not  relievable,  as  against 
such  purchasers,  under  such  circumstances. 

§  439.  We  have  thus  gone  over  the  principal  grounds  upon  which 
courts  of  equity  grant  relief  in  cases  of  accident,  mistake,  and  fraud. 
And  here  the  flexibility  of  courts  of  equity  in  adapting  their  judgments 
to  the  actual  relief  required  by  the  parties  is  strikingly  illustrated. 
Accident,  mistake,  and  fraud  are  of  an  infinite  variety  in  form, 
character,  and  circumstances,  and  are  incapable  of  being  adjusted  by 
any  single  and  uniform  rule.  Of  each  of  them  one  might  say,  "  Mille 
trahit  varies  adverse  sole  colores."  The  beautiful  character,  pervading 
excellence,  if  one  may  say,  of  equity  jurisprudence  is,  that  it  varies 
its  adjustments  and  proportions,  so  as  to  meet  the  very  form  and 
pressure  of  each  particular  case  in  all  its  complex  habitudes.  Thus,  to 
present  a  summary  of  what  has  been  already  stated,  if  conveyances  or 
other  instruments  are  fraudulently  or  improperly  obtained,  they  are 
decreed  to  be  given  up  and  cancelled.  If  they  are  money  securities, 
on  which  the  money  has  been  paid,  the  money  is  decreed  to  be  paid 
back.  If  they  are  deeds,  or  other  muniments  of  title,  detained  from 
the  rightful  party,  they  are  decreed  to  be  delivered  up.  If  they  are 
deeds  suppressed  or  spoliated,  the  paity  is  decreed  to  hold  the  same 


(6)  Dig.  Lib.  42,  tit.  8,  f.  9. 

(c)  2  Voet,  Comm.  Lib.  42,  tit.  8,  §  10,  p.l05. 

(d)  See  ante,  §  108,  381,  410;  post,  §  630. 


176  EQUITY  JURISPRUDENCE.  [CH.    VII. 

rights  as  if  they  were  in  his  possession  and  power.  If  there  has  been 
any  undue  concealment,  or  misrepresentation,  or  specific  promise 
collusively  broken,  the  injured  party  is  placed  in  the  same  situation, 
and  the  other  party  is  compelled  to  do  the  same  acts,  as  if  all  had  been 
transacted  with  the  utmost  good  faith.  If  the  party  says  nothing,  but 
by  his  expressive  silence  misleads  another  to  his  injury,  he  is  com- 
pellable to  make  good  the  loss;  and  his  own  title,  if  the  case  requires 
it,  is  made  subservient  to  that  of  the  confiding  purchaser.  If  a  party, 
by  fraud  or  misrepresentation,  induces  another  to  do  an  act  injurious 
to  a  third  person,  he  is  made  responsible  for  it.  If,  by  fraud  or  mis- 
representation, he  prevents  acts  from  being  done,  equity  treats  the 
case,  as  to  him,  as  if  it  were  done;  and  makes  him  a  trustee  for  the 
other.  If  a  will  is  revoked  by  a  fraudulent  deed,  the  revocation  is 
treated  as  a  nullity.  If  a  devisee  obtains  a  devise  by  fraud,  he  is 
treated  as  a  trustee  of  the  injured  parties.  In  all  these,  and  many 
other  cases  which  might  be  mentioned,  courts  of  equity  undo  what  has 
been  done,  if  wrong ;  and  do  what  has  been  left  undone,  if  right. 

§  440.  We  may  conclude  this  head,  by  calling  the  attention  of 
the  reader  to  the  remark  (which  has  been  necessarily  introduced  in 
another  place),  that  courts  of  equity  will  exercise  a  concurrent  juris- 
diction with  courts  of  law  in  all  matters  of  fraud,  excepting  only  of 
fraud  in  obtaining  a  will,  which,  if  of  real  estate,  was  consistently 
referred  to  a  court  of  law  to  decide  it,  and  which,  if  of  personal  estate, 
was  cognizable  in  the  Court  of  Probate.  But,  even  in  this  ease,  the 
bill  might  be  retained,  to  abide  the  decision  in  the  proper  court,  and 
relief  be  decreed  according  to  the  event.  No  other  excepted  case  is 
known  to  exist;  and  it  is  not  easy  to  discern  the  grounds  upon  which 
this  exception  stands,  in  point  of  reason  or  principle,  although  it  is. 
clearly  settled  by  authority.  But  where  the  fraud  did  not  go  to  the 
whole  will,  but  only  to  some  particular  clause ;  or  where  the  fraud  was 
in  unduly  obtaining  the  consent  of  the  next  of  kin  to  the  probate, 
courts  of  equity  laid  hold  of  these  circumstances  to  declare  the  executor 
a  trustee  for  the  next  of  kin  (e). 

(e)  Allen  v.  McPherson,  1  H.  L.  C.  191;  Meluish  v.  Milton,  3  Ch.  D.  27;  Priest- 
man  V.  Thomas,  9  P.  D.  210. 


§  440 — 442.]  ACCOUNT.  17T 


CHAPTER    VIII. 

ACCOUNT. 

§  441.  Having  disposed  of  these  three  great  heads  of  concurrent 
equitable  jurisdiction  in  matters  of  accident,  mistake,  and  fraud,  the 
undisputed  possession  of  which  has  belonged  to  courts  of  equity  from  the 
earliest  period  which  can  be  traced  out  in  our  judicial  annals,  we 
may  now  pass  to  others  of  a  different  and  less  extensive  character. 
We  allude  to  the  heads,  where  the  jurisdiction,  although  it  may  attach 
upon  any  or  all  of  the  grounds  above  mentioned,  is  not  necessarily 
dependent  upon  them,  and,  in  fact,  is  exercised  in  a  variety  of  cases 
where  they  do  not  apply,  upon  another  distinct  ground,  namely,  that 
the  subject-matter  is,  per  se,  within  the  scope  of  equitable  jurisdiction. 
Among  these  are  matters  of  account,  and,  as  incident  thereto,  matters 
of  apportionment,  contribution,  and  average ;  liens,  rents,  and  profits ; 
waste;  matters  of  administration,  legacies,  and  marshalling  of  assets; 
confusion  of  boundaries ;  matters  of  dower ;  marshalling  of  securities ; 
matters  of  partition ;  matters  of  partnership ;  and,  lastly,  matters  of 
rent,  so  far  as  they  are  not  embraced  in  the  preceding  head  of  Account. 
§  442.  Xet  us  begin  with  matters  of  Account.  One  of  the  most 
ancient  forms  of  action  at  the  common  law  is  the  action  of  account. 
But  the  modes  of  proceeding  in  that  action,  although  aided  from  time 
to  time  by  statutable  provisions,  were  found  so  very  dilatory,  incon- 
venient, and  unsatisfactory,  that  as  soon  as  courts  of  equity  began 
to  assume  jurisdiction  in  matters  of  account,  as  they  did  at  a 
very  early  period,  the  remedy  at  law  began  to  decline;  and,  although 
some  efforts  were  made  in  subsequent  times  to  resuscitate  it  in 
England,  it  fell  into  almost  total  disuse  (a).  Courts  of  equity  for  a 
long  time  exercised  a  general  jurisdiction  in  all  cases  of  mutual 
accounts,  upon  the  ground  of  the  inadequacy  of  the  remedy  at  law ; 
and  extfended  the  remedy  to  a  vast  variety  of  cases  (such  as  to  implied 
and  constructive  trusts)  to  which  the  remedy  at  law  never  was 
applied  (b).     The  jurisdiction  extended,  not  only  to  cases  of  an  equit- 

(a)  See  Att.-Gen.  v.  Dublin  Corporation,  3  Bli.  N.  S.  314.  In  Godfrey  v. 
Saunders,  3  Wils.  73,  113,  117,  which  is  one  of  the  few  modern  actions  of  account  in 
England,  Lord  Chief  Justice  Wilmot  said  (p.  117),  "  I  am  glad  to  see  this  action  of 
account  is  revived  in  this  court."  But  the  parliamentary  commissioners,  in  their 
second  report  on  the  common  law,  8th  March,  1830  (pp.  9,  25,  26),  had  no  scruple  to 
admit  its  inconvenience  and  dilatorinees,  and  that  it  had  gone  into  disuse. 

(b)  See  Corporation  of  Carlisle  v.  Wilson,  13  Ves.  275. 

E.J.  12 


178  EQUITY     JURISPRUDENCE.  [CH.    VIII. 

able  nature,  but  to  many  cases  where  the  form  of  the  account  was 
purely  legal,  and  the  items,  constituting  the  account,  were  founded  on 
obligations  purely  legal. 

§  443.  The  difficulties  in  the  modes  of  proceeding  in  common  law 
actions  of  account,  and  the' convenience  of  the  modes  of  proceeding  in 
suits  in  equity,  to  attain  the  ends  of  substantial  justice,  are  stated  in  an 
elementary  work  of  solid  reputation,  with  great  clearness  and  force. 
The  language  of  one  learned  author  is  as  follows:  "  The  proceedings 
in  this  action  being  difficult,  dilatory,  and  expensive,  it  is  now  seldom 
used,  especially  if  the  party  have  other  remedy,  as  debt,  covenant, 
case,  or  if  the  demand  be  of  consequence,  and  the  matter  of  an 
intricate  nature;  for,  in  such  a  case,  it  is  more  advisable  to  resort  to 
a  court  of  equity,  where  matters  of  accompt  are  more  commodiously 
adjusted,  and  determined  more  advantageously  for  both  parties ;  the 
plaintiff  being  entitled  to  a  discovery  of  books,  papers,  and  the 
defendant's  oath;  and,  on  the  other  hand,  the  defendant  being  allowed 
to  discount  the  sums  paid  or  expended  by  him ;  to  discharge  himself 
of  sums  under  forty  shillings  by  his  own  oath ;  and  if  by  answer  or 
other  writing  he  charges  himself,  by  the  same  to  discharge  himself, 
which  will  be  good,  if  there  be  no  other  evidence.  Further,  all 
reasonable  allowances  are  made  to  him ;  and  if  after  the  accompt  is 
stated,  anything  be  due  to  him  upon  the  balance,  he  is  entitled  to 
a  decree  in  his  favour  "  (c). 

§  444.  To  expound  and  justify  the  truth  of  these  remarks,  it  may 
be  well  to  take  a  short  review  of  the  old  action  of  account,  and  to  see 
to  what  narrow  boundaries  it  was  confined,  and  by  what  embarrass- 
ments it  was  surrounded. 

§  445.  At  the  common  law,  an  action  of  account  lay  only  in  cases 
where  there  was  either  a  privity  in  deed,  by  the  consent  of  the  party, 
as  against  a  bailiff  or  receiver  appointed  by  the  party,  or  a  privity  in 
law,  ex  provisione  legis,  as  against  a  guardian  in  socage  (d).  An  ex- 
ception, indeed,  or  rather  an  extension  of  the  rule,  was,  for  the  benefit 
of  trade  and  the  advancement  of  commerce,  allowed  in  favour  of  and 
between  merchants;  and  therefore,  by  the  law-merchant,  one  naming 
himself  a  merchant  might  have  an  account  against  another,  naming 
him  a  merchant,  and  charge  him  as  receiver  (e).  But,  in  truth,  in 
almost  every  supposable  case  of  this  sort,  there  was  an  established 
privity  of  contract.  With  this  exception,  however  (if  such  it  be),  the 
action  was  strictly  confined  to  bailiffs,  receivers,  and  guardians,  in 
socage   (/).     So  strictly  was  this  privity  of  contract  construed,   that 

(c)  Bac.  Abr.  Accompt.  See,  also,  Att.-Gen.  v.  Dublin  Corporation,  3  Bli.  N.  S. 
312. 

(d)  1  Co.  Litt.  90  b  ;  ibid.  172  o  ;  2  Ponbl.  Eq.  B.  2,  ch.  7,  §  6,  and  note  ;  Bac.  Abr. 
Accompt,  A. ;  Com.  Dig.  Accompt,  A.  1 ;  2  Inst.  379. 

(e)  Co.  Litt.  172  a;  Earl  of  Devonshire's  case,  11  Co.  89. 

{/)  BuUer,  N.  P.  127;  1  Eq.  Abr.  5,  note  (a);  2  Fonbl.  Eq.  B.  2,  ch.  7,  §  6,  and 
note  (n);  Co.  Litt.  172  a;  2  Inst.  379. 


§  443—446.]  ACCOUNT.  179 

the  action  did  not  lie  by  or  against  executors  and  administrators. 
The  statute  of  13  Edw.  3,  c.  28,  gave  it  to  the  executors  of  a  merchant; 
the  statute  of  25  Edw.  3,  c.  5,  gave  it  to  the  executors  of  executors; 
and  the  statute  of  31  Edw.  3,  c.  11,  to  administrators  (g).  But 
it  was  not  until  the  statute  of  3  &  4  Anne,  c.  16,  that  it  lay 
against  executors  and  administrators  of  guardians,  bailiffs,  and 
receivers  (h). 

§  446.  But  in  all  cases  of  this  latter  sort,  although  there  was  no 
remedy  at  the  common  law,  yet  a  bill  in  equity  might  be  maintained 
for  an  account  against  the  personal  representatives  of  guardians,  bailiffs, 
and  receivers;  and  such  was  the  usual  remedy  prior  to  the  remedial 
statute  of  Anne  (?).  And  no  action  of  account  lay  at  the  common  law 
against  wrongdoers  (fc) ;  or  by  one  joint-tenant,  or  tenant  in  common, 
or  his  executors  or  administrators,  against  the  other,  as  bailiff,  for 
receiving  more  than  his  share ;  or  against  his  executors  or  administra- 
tors, unless  there  was  some  special  contract  between  them,  whereby 
the  one  made  the  other  his  bailiff ;  for  the  relation  itself  was  held  not 
to  create  any  privity  of  contract  by  operation  of  law  (!)■  This  defect 
was  afterwards  cured  by  the  statute  of  the  3  &  4  Anne,  c.  16  (m).  The 
common  law  was  strict,  as  to  who  was  to  be  accounted  a  bailiff  or 
receiver;  for  a  bailiff  was  understood  to  be  one  who  had  the  adminis- 
tration and  charge  of  lands,  goods,  and  chattels,  to  make  the  best 
benefit  for  the  owner,  and  against  whom,  therefore,  an  action  of 
account  lie  for  the  profits,  which  he  had  made,  or  might,  by  his  industry 
or  care,  have  reasonably  made  :  his  reasonable  charges  and  expenses 
being  deducted  (n).  A  receiver  was  one  who  received  money  to  the 
use  of  another  to  render  an  account ;  but  upon  his  account  he  was  not 
allowed  his  expenses  and  charges,  except  in  the  case  of  merchant 
receivers.  And  this  exception  was  provided  (as  it  was  said)  by  the  law 
of  the  land  in  favour  of  merchants,  and  for  the  advancement  of  trade 
and  traffic  (o).  So  that  it  will  be  at  once  perceived,  from  these  cases 
(and  many  others  might  be  mentioned  (p))  that  the  remedy  at  the 
common  law  was  very  narrow ;  and  although  it  was  afterwards  enlarged, 
that  would  not  of  itself  displace  the  jurisdiction  originally  vested  in 
courts  of  equity. 

(g)  Co.  Litt.  90  b. 

(h)  Ibid. ;  Buller,  N.  P.  127 ;  Earl  of  Devonshire's  Case,  11  Co.  89. 

(t)  1  Eq.  Cas.  Abr.  5,  note  (o). 

(k)  Bac.  Abr.  Accompt,  B.  We  shall  presently  see  that  courts  of  equity  fre- 
quently administer  relief  in  cases  of  account  against  wrongdoers.  See  Bac.  Abr. 
Accompt,  B. ;  Bosanquet  v.  Dashwood,  Cas.  temp.  Talb.  38,  41. 

(Z)  Co.  Litt.  172,  and  Harg.  note  (8) ;  Co.  Litt.  186  o,  119  b,  and  Harg.  note  (83) ; 
Wheeler  v.  Home,  Willes  208 ;  Bac.  Abr.  Accompt,  A. ;  1  Saund.  216,  Williams's  note. 

(m)  3  Black.  Coram.  364. 

(n)  Co.  Litt.  172. 

(o)  Ibid.  172  ffl. 

(p)  See  Bac.  Abr.  Accompt,  B.,  C. ;  Com.  Dig.  Accompt,  A.,  B.,  D. ;  8  Eeevea  337, 
836,  839;  3  Beeyes  337  ;  3  Reeves  75,  76 ;  4  Reeves  388. 


180  EQUITY     JURISPRUDENCE.  [CH.    VIII. 

§  446a.  In  the  next  place,  as  to  the  modes  of  proceeding  in 
actions  of  account.  At  the  common  law,  before  either  the  statute  of 
Marlebridge,  c.  23,  or  of  Westminster  2nd,  c.  11,  there  were  two 
methods  of  proceeding  against  an  accountant;  one,  by  which  the  party, 
to  whom  he  was  accountable,  might,  by  consent  of  the  accountant, 
either  take  the  account  himself,  or  assign  an  auditor  or  auditors  to 
take  it;  and  then  have  his  action  of  debt  for  the  arrearages;  or,  in 
more  modern  times,  an  action  on  the  case,  or  insimul  computassent . 
And  the  accountant,  if  aggrieved,  might  have  his  writ  of  ex  parte  talis, 
to  re-examine  the  account  in  the  exchequer.  The  other  proceeding  of 
the  plaintiff  was,  in  the  first  instance,  by  way  of  a  writ  of  account. 
The  process,  by  which  this  latter  remedy  might  be  made  more  effectual, 
is  particularly  described  in  the  statute  of  Marlebridge,  and  the  statute 
of  Westminster  2nd,  upon  which  it  is  unnecessary  to  dwell  (5). 

§  447.  In  the  action  of  account,  there  were  two  distinct  courses  of 
proceeding.  In  the  first  place,  the  party  might  interpose  any  matter 
in  abatement  or  bar  of  the  proceeding ;  and  if  he  failed  in  it,  then  there 
was  an  interlocutory  judgment,  that  he  should  account  {quod  computet) 
before  auditors  (r).  After  this  judgment  was  entered,  it  was  the  duty 
of  the  court  to  assign  auditors,  who  were  armed  with  authority  to 
convene  the  parties  before  them,  de  die  in  diem,  at  any  time  or  place 
they  should  appoint  until  the  accounting  was  determined.  The  time 
by  which  the  account  was  to  be  settled  was  prefixed  by  the  court. 
But,  if  the  account  were  of  a  long  or  confused  nature,  the  court  would, 
upon  the  application  of  the  parties,  enlarge  the  time.  In  taking  the 
account,  the  auditors  in  an  action  of  account  at  the  common  law  could 
not  administer  an  oath,  except  in  one  or  two  particular  cases.  But, 
under  the  statute  of  3  &  4  Anne,  c.  16,  the  auditors  were  empowered 
to  administer  an  oath,  and  examine  the  parties  touching  the  matters 
in  question,  in  cases  within  that  Act  (s). 

§  448.  If,  in  the  progress  of  the  cause  before  the  auditors,  when 
the  items  were  successively  brought  under  review,  any  controversy 
should  arise  before  the  auditors,  as  to  charging  or  discharging  any 
items,  the  parties  had  a  right,  if  the  points  involved  matters  of  fact, 
to  make  up  and  join  issues  upon  such  items  respiectively ;  and,  if  the 
points  involved  matters  in  law,  they  had  a  right  in  like  manner  to 
put  in  and  join  demurrers  upon  each  distinct  item.  These  issues, 
when  so  made  up,  were  to  be  certified,  by  the  auditors,  to  the  court; 
and  then  the  matters  of  law  were  decided  by  the  court;  and  the 
matters  of  fact  were  tried  by  a  jury,  after  which  the  accounts  were 
settled  by  the  auditors  according  to  the  results  of  these  trials.  From 
this    circumstance    the    proceedings    before    the    auditors    were    often 

(q)  Com.  Dig.  Accompt,  A.,  and  note  (a);  3  Reeves  75,  76. 
(r)  3  Black.  Coram.  164;  O'Connor  v.  Spaight,  1  Sch.  &  Lefr.  309. 
(s)  Co.  Litt.  199,  and  Harg.  note  (83);   Wheeler  v.  Home,  Willes  i208,  210;  1 
Selwyn,  N.  P.  6;  Buller,  N.  P.  127;  Bao  Abr.  Wager  of  Laio,  C. 


§  446o — 450.]  ACCOUNT.  181 

tedious,  expensive,  and  inconvenient  (<),-  And,  indeed,  as  different 
points  both  of  fact  and  law  might  arise  in  different  stages  of  the  suit 
and  in  different  examinations  before  the  auditors,  as  vcell  after  as 
before  such  issues  had  been  joined  and  tried,  it  ought  not  to  be  sur- 
prising, that  the  cause  should  be  procrastinated  for  a  great  length  of 
time,  by  its  transition  from  one  tribunal  to  another,  for  the  various 
purposes  incident  to  a  due  settlement  of  its  merits.  And  besides  these 
difficulties,  there  were  many  actions  of  account  in  which  the  defen- 
dant might  wage  his  law,  and  thus  escape  from  answering  his 
adversary's  claim  (m). 

§  449.  This  summary  view  of  the  modes  of  proceeding  in  the  action 
of  account  is  sufficient  to  show,  that  it  was  a  very  unfit  instrument 
to  ascertain  and  adjust  the  real  merits  of  long,  complicated,  and  cross 
accounts.  In  the  first  place,  it  was  inapplicable  to  a  vast  variety  of 
cases  of  equitable  claims,  of  constructive  trusts,  of  fraudulent  con- 
trivances and  of  tortious  misconduct.  In  the  next  place,  there  was  a 
want  of  due  power  to  draw  out  the  proper  proofs  from  the  party's  own 
conscience ;  so  that  if  evidence  aliunde  was  unattainable,  there  was, 
and  there  could  be,  no  effective  redress.  And  it  has  been  well  observed 
by  Mr.  Justice  Blackstone,  that,  notwithstanding  all  the  legislative 
provisions  in  aid  of  the  common-law  action  of  account,  "  it  is  found  by 
experience,  that  the  most  ready  and  effectual  way  to  settle  these 
matters  of  account  is  by  a  bill  in  a  court  of  equity,  where  a  discovery 
may  be  had  on  the  defendant's  oath,  without  relying  merely  on  the 
evidence  which  the  plaintiff  may  be  able  to  produce  "  {x). 

§  450.  Courts  of  equity,  in  suits  of  this  nature,  proceed,  in  many 
respects,  in  analogy  to  what  is  done  at  law.  The  cause  is  referred  to 
a  master  (acting  as  an  auditor),  before  whom  an  account  is  taken,  and 
he  is  armed  with  the  fullest  powers,  not  only  to  examine  the  parties 
on  oath,  but  to  make  all  the  inquiries  by  testimony  under  oath,  and 
by  documents  and  books  and  vouchers,  to  be  produced  by  the  parties, 
which  are  necessary  for  the  due  administration  of  justice.  And  when 
his  report  is  made  to  the  court,  any  objections  which  have  been  made 
before  the  master,  and  any  exceptions  taken  to  his  report,  may  be 
re-examined  by  the  court  at  the  instance  of  the  parties,  and  the  whole 
case  is  moulded  as,  ex  ssquo  et  bono,  may  be  required  {y).  The  court 
may,  besides,  bring  all  the  proper  parties  in  interest  before  it,  where 
there  are  different  parties  concerned  in  interest;  and,  if  any  doubt 
arises  upon  any  particular  demand,  it  may  direct  the  same  to  be 
ascertained  by  an  issue  and  verdict  at  law.     So  that  there  cannot  be 


{t)Ex  ■parte  Bax,  2  Ves.  388;  Bac.  Abr.  Accompt,  P.;  BuUer,  N.  P.  127,  128; 
Yelverton,  202,  Metcalf's  note  (1). 

(«)  Com.  Dig.  Pleader,  2  W.  45;  Co.  Litt.  90  b ;  ibid.  295  b  ;  Archer's  case,  Cro. 
Eliz.  579;  Bac.  Abr.  Wager  of  Law,  D.,  G. 

(x)  3  Black.  Comm.  164. 

ly)  Ex  parte  Bax,  2  Ves.  388. 


182  EQUITY     JURISPRUDENCE.  [CH.    VIII. 

any  real  doubt  that  the  remedy  in  equity,  in  cases  of  account, 
is  generally  more  complete  and  adequate  than  it  is  or  can  be 
at  law  (»). 

§  451.  This  has,  accordingly,  been  considered  in  modern  times  as 
the  true  foundation  of  the  jurisdiction.  Mr.  Justice  Blackstone  has, 
indeed,  placed  it  upon  the  sole  ground  of  the  right  of  the  courts  of 
equity  to  compel  a  discovery — ' '  For  want ' '  (said  he)  ' '  of  this  dis- 
covery at  law,  the  courts  of  equity  have  acquired  a  concurrent  juris- 
diction with  every  dther  court  in  matters  of  account  "  (a).  But  this, 
although  a  strong,  yet  is  not  the  sole  ground  of  the  jurisdiction.  The 
whole  machinery  of  courts  of  equity  is  better  adapted  to  the  purpose 
of  an  account  in  general;  and  in  many  cases,  independent  of  the 
searching  power  of  discovery,  and  supposing  a  court  of  law  to  possess 
it,  it  would  be  impossible  for  the  latter  to  do  entire  justice  between 
the  parties;  for  equitable  rights  and  claims,  not  cognizable  at  law, 
are  often  involved  in  the  contest.  Lord  Eedesdale  has  justly  said 
that,  in  a  complicated  account,  a  court  of  law  would  be  incompetent 
to  examine  it  at  Nisi  Prius  with  all  the  necessary  accuracy  (c).  This 
is  the  principle  on  which  courts  of  equity  constantly  act,  by  taking 
cognizance  of  matters  which,  though  cognizable  at  law,  are  yet  so 
involved  with  a  complex  account,  that  it  cannot  be  properly  taken  at 
law;  and  until  the  result  of  the  account  is  known,  the  justice  of  the 
case  cannot  appear  (d).  Matters  of  account  (he  had  added)  may, 
indeed,  be  made  the  subject  of  an  action ;  but  an  account  of  this  sort  is 
not  a  proper  subject  for  this  mode  of  proceeding.  The  old  mode  of 
proceeding  upon  the  writ  of  account  shows  it.  The  only  judgment  was, 
that  the  party  should  account,  and  then  the  account  was  taken  by  the 
auditors.     The  court  never  went  into  it  (e). 

§  452.  It  is  not  improbable  that,  originally,  in  cases  of  account, 
which  might  be  cognizable  at  law,  courts  of  equity  interfered  upon 
the  special  ground  of  accident,  mistake,  or  fraud.  If  so,  the  ground 
was  very  soon  enlarged,  and  embraced  mixed  cases  not  governed  by 
these  matters.  The  courts  soon  arrived  at  the  conclusion  that  the 
true  principle  upon  which  they  should  entertain  suits  for  an  account 
in  matters  cognizable  at  law  was,  that  either  a  court  of  law  could  not 
give  any  remedy  at  all,  or  not  so  complete  a  remedy  as  courts  of  equity. 
And  the  moment  this  principle  was  adopted  in  its  just  extent,  the 
concurrent  jurisdiction  became  almost  universal,  and  reached  almost 
instantaneously  its  present  boundaries  (/). 

(z)  Corporation  of  Carlisle  v.   Wilson,  13  Ves.  278,  279. 
(o)  3  Black.  Comm.  437. 

(c)  O'Connor  v.  Spaight,  1  Sch.  &  Lefr.  930.     See  White  v.  Williams,  8  Ves.  193. 

(d)  O'Connor  v.  Spaight,  1  Sch.  &  Lefr.  309;  Harrington  v.  Churchward,  29 
L   J.  Ch.  521. 

(e)  Cooper,  Eq   PI.  134. 

(/)  Corporation  oj  Carlisle  v.  Wilson,  13  Ves.  278. 


§  451—459.]  ACCOUNT.  183 

§  453.  In  virtue  of  this  general  jurisdiction  in  matters  of  account, 
courts  of  equity  exercise  a  very  ample  authority  over  matters  appa- 
rently not  very  closely  connected  vs'ith  it,  but  whiclj  naturally,  if  not 
necessarily,  attach  to  such  a  jurisdiction.  Mr.  Justice  Blackstone  has 
said:  "  As  incident  to  accounts,  they  take  a  concurrent  cognizance  of 
the  administration  of  personal  assets;  consequently,  of  debts,  legacies, 
the  distribution  of  the  residue,  and  the  conduct  of  executors  and 
administrators.  As  incident  to  accounts,  they  also  take  the  concurrent 
jurisdiction  of  tithes  and  all  questions  relating  thereto;  of  all  dealings 
in  partnership  and  many  other  mercantile  transactions ;  and  so  of 
bailiffs,  factors,  and  receivers.  It  would  be  endless  to  point  out  all  the 
several  avenues  in  human  afiairs,  and  in  this  commercial  age,  vchich 
lead  to  or  end  in  accounts  "  (g).  But  it  is  far  from  being  admitted 
that  the  sole  origin  of  equity  jurisdiction  on  these  subjects  arises  from 
this  source.  It  is  one,  but  not  the  sole  source.  In  many  of  these 
cases,  as  well  as  in  others,  which  will  hereafter  be  considered,  in  which 
accounts  may  be  taken  as  incidents  to  the  relief  granted,  there  are 
other  distinct,  if  not  independent,  sources  of  jurisdiction;  and 
especially  one  source,  which  is  the  peculiar  attribute  of  courts  of  equity, 
the  jurisdiction  over  trusts,  not  merely  express,  but  implied  and 
constructive. 

§  458.  Courts  of  equity  also  entertained  jurisdiction  in  matters  of 
account,  not  only  when  there  were  mutual  accounts,  but  also  when 
the  accounts  to  be  examined  were  on  one  side  only,  and  a  discovery 
was  wanted  in  aid  of  the  account,  and  was  obtained.  But  where 
there  were  no  mutual  demands  but  a  single  matter  on  one  side,  and 
no  discovery  was  required,  a  court  of  equity  would  not  entertain  juris- 
diction of  the  suit,  although  there  might  be  payments  on  the  other  side, 
which  might  be  set  oS ;  for  in  such  a  case,  there  was  not  only  a  com- 
plete remedy  at  law,  but  there  was  nothing  requiring  the  peculiar  aid 
of  equity,  to  ascertain  or  adjust  the  claim  (h).  To  found  the  juris- 
diction, in  cases  of  a  claim  of  this  sort,  there  should  be  a  series  of 
transactions  on  one  side,  and  of  payments  on  the  other. 

§  469.  So  that,  on  the  whole,  it  may  be  laid  down  as  a  general 
doctrine,  that  in  matters  of  account,  growing  out  of  privity  of  con- 
tract, courts  of  equity  had  a  general  jurisdiction  where  there  were 
mutual  accounts  (and  a  fortiori,  where  the  accounts  were  complicated), 
and  also  where  the  accounts  were  on  one  side,  but  a  discovery  was 
sought,  and  was  material  to  the  relief.  And,  on  the  other  hand,  where 
the  accounts  were  all  on  one  side,  and  discovery  was  not  sought,  or  if 
sought  was  not  required;  and  also,  where  there  was  a  single  matter 
on  the  side  of  the  plaintiff  seeking  relief,  and  mere  sets  off  on  the  other 

(g)  3  Black.  Coram.  437. 

(h)  Hoare  v.  Ootencin,  1  Bro.  C.  C.  27;  Mackenzie  v.  Johnston,  i  Mad.  374; 
Massey  v.  Banner,  4  Mad.  418;  Frietas  v.  Don  Santos,  1  Y.  &  J.  574;  Blyth  v. 
Whiffin,  27  L.  T.  330. 


184  EQUITY     JURISPRUDENCE .  [CH.    VIII. 

side,  and  no  discovery  was  sought  or  required ;  in  all  such  cases  courts  of 
equity  would  decline  taking  jurisdiction  of  the  cause.  The  reason  being 
that  if  no  peculiar  remedial  process  or  functions  of  a  court  of  equity  was 
required,  the  claim  would  become  a  bare  money  claim  and  the  court 
would  merely  administer  the  same  functions  in  the  same  way  as  a 
court  of  law  would  in  the  suit.  In  short,  it  would  act  as  a  court  of 
law  (z). 

§  459a.  So  far  as  England  is  concerned  the  preceding  discussion 
has  become  of  academical  interest,  By  force  of  the  Judicature  Act, 
1873  (36  &  87  Vict.  c.  66),  s.  24,  legal  and  equitable  rights  are  concur- 
rently administered  in  all  actions,  but  by  force  of  section  84,  sub-sec- 
tion 8  of  the  ■  same  statute  matters  of  account  are  allocated  to 
the  Chancery  Division,  which  alone  has  the  proper  administrative 
machinery.  Actions  for  an  account  involving  the  taking  of  an  account 
may  come  before  the  King's  Bench  Division,  and  in  that  event  the 
provisions  of  section  14  of  the  Arbitration  Act,  1889  (52  &  53  Vict, 
c.  49),  enable  the  judge  to  refer  cases,  if  the  question  in  dispute  consists 
wholly  or  in  part  of  matters  of  account,  to  a  "  special  referee  or 
arbitrator  "  or  to  an  "  official  referee  or  officer  of  the  court." 

§  459b.  By  the  Eules  of  the  Supreme  Court,  1883,  Order  XV.  r.  1, 
where  a  writ  of  summons  has  been  indorsed  for  an  account  under 
Order  III.  r.  8,  of  the  same  Eules,  or  where  the  indorsement  involves 
taking  an  account,  if  the  defendant  either  fails  to  appear,  or  does  not, 
after  appearance  by  affidavit  or  otherwise,  satisfy  the  court  or  a  judge 
that  there  is  some  preliminary  question  to  be  tried,  an  order  for  the 
proper  accounts,  with  all  necessary  inquiries  and  directions,  now  usual 
in  the  Chancery  Division  in  similar  cases,  shall  be  forthwith  made. 

§  459c.  Appropriation.  In  matters  of  account  where  several 
debts  are  due  by  the  debtor  to  the  creditor,  it  often  becomes  material 
to  ascertain  to  what  debt  a  particular  payment  made  by  the  debtor  is 
to  be  applied.  This  is  called  in  our  law  the  appropriation  of  payments. 
It  is  called  in  the  foreign  law  the  imputation  of  payments  (k),  a  phrase 
apparently  borrowed  from  the  Eoman  law,  where  the  doctrine  of  the 
appropriation  of  payments  is  carefully  examined,  and  the  leading 
distinctions  applicable  to  it  amply  discussed  (l).  The  doctrine  may,  of 
course,  find  a  place  wherever  there  exist  separate  and  independent  debts 
between  the  parties ;  but  it  is  chiefly  in  cases  of  running  accounts 
between  debtor  and  creditor,  where  various  payments  have  been  made 
and  various  credits  have  been  given  at  different  times,  that  its  applica- 
tion is  felt  in  its  full  force  and  importance,  especially  where  the 
dealings  have  been  with  a  firm,  as,  for  example,  with  bankers,  and  one 

(i)  Hoare  v.  Cotencin,  1  Bro.  C.  C.  27;  Mackenzie  v.  Johnston,  i  Mad.  374; 
Massey  v.  Banner,  4  Mad.  413;  Frietas  v.  Don  Santos,  1  Y.  &  J.  574;  Blyth  v. 
Whiffin,  27  L.   T.   330. 

(k)  Pothier  on  Oblig.  by  Evans,  n.  528  (ibid.  n.  661,  Fr.  edit.  1824). 

(l)  Pothier,  Pand.  Lib.  46,  tit.  3,  n.  89  to  103. 


§  459a— 459d!.]  account.  185 

or  more  of  the  partners  have  deceased,  and  the  customer  still  continues 
his  dealings  with  the  new  firm,  or  the  survivors  of  the  old  firm,  and 
moneys  have  been  paid  in,  and  drawn  out,  from  time  to  time  (m). 
The  same  question  often  occurs,  in  cases  of  public  officers,  where 
sureties  have  given  different  bonds,  at  different  times,  for  the  faithful 
performance  of  the  official  duties,  in  respect  of  moneys  received  by 
them  at  different  periods,  embracing  one  or  more  of  the  bonds.  How, 
in  such  cases,  where  running  accounts  are  kept  of  debts  and  payments, 
of  credits  and  receipts,  are  the  payments,  made  at  different  times, 
before  and  after  the  change  of  the  firm,  or  the  change  of  sureties,  to  be 
appropriated?  In  the  first  place,  in  the  case  of  running  accounts 
between  parties,  where  there  are  various  items  of  debt  on  one  side,  and 
various  items  of  credit  on  the  other  side,  occurring  at  different  times, 
and  no  special  appropriation  of  the  payments  is  made  by  either  party, 
the  successive  payments  or  credits  are  to  be  applied  to  the  discharge  of 
the  items  of  debit,  antecedently  due,  in  the  order  of  time  in  which  they 
stand  in  the  accounts ;  or,  in  other  words,  each  item  of  payment  or 
credit  is  applied  in  extinguishment  of  the  earliest  items  of  debt  standing 
in  the  account,  until  the  whole  payment  or  credit  is  exhausted  (n). 
In  the  next  place,  where  there  are  no  running  accounts  between  the 
parties,  and  the  debtor  himself  makes  no  special  appropriation  of  any 
payment,  there  the  creditor  is  generally  at  liberty  to  apply  that  pay- 
ment to  any  one  or  more  of  the  debts  which  the  debtor  owes  him, 
whether  it  be  upon  an  account  or  otherwise  (o). 

§  459d.  The  Roman  law  proceeded,  in  a  great  measure,  if  not 
altogether,  upon  similar  principles.  But  according  to  that  law,  the 
election  was  to  be  made  at  the  time  of  payment,  as  well  in  the  case 
of  the  creditor  as  in  that  of  the  debtor  :  "  In  re  prsesenti,  hoc  est  statim 
atque  solutum  est: — 'Caeterum  pdstea  non  permittitur  "  (p).  If  neither 
applied  the  payment,  the  law  made  the  appropriation  according  to 
certain  rules  of  presumption  depending  on  the  nature  of  the  debts  or 
the  priority  in  which  they  were  incurred.  And  as  it  was  the  actuiil 
intention  of  the  debtor,  that  would,  in  the  first  instance,  have  governed ; 
so  it  was  his  presumable  intention  that  was  first  resorted  to  as  the  rule 
by  which  the  application  was  to  be  determined.  In  the  absence,  there- 
fore, of  any  express  declaration  by  either,  the  inquiry  was,  What 
application  would  be  most  beneficial  to  the  debtor?  The  payment  was 
consequently  applied  to  the  most  burdensome  debt, — to  one  that 
carried    interest,    rather    than    to   that    which    carried   none, — to   one 

(m)  Bank  of  Scotland  v.  Christie,  8  CI.  &  P.  214. 

(n)  Clayton's  Case,  1  Meriv.  572;  Bodenlmm  v.  Purchas,  2  B.  &  Aid.  39;  Simson 
v.  Cooke,  1  Bing.  452;  Simson  v.  Ingham,  2  B.  &  C.  65;  Copland  v.  Toulmin,  7 
CI.  &  F.  349;  Bank  of  Scotland  v.  Christie,  8  CI.  &  P.  214. 

(o)  Bosanquet  v.  Wray,  6  Taunt.  597;  Brooke  v.  Enderby,  2  Brod.  &  Bing.  70; 
Kinnaird  v.  Webster,  10  Ch.  D.  139;  In  re  Sherry:  London  and  County  Bank  v.  Terry, 
25  Ch.  D.  692. 

(p)  Dig.  Lib.  46,  tit.  3,  f.  5. 


186  EQUITY     JURISPRUDENCE.  [CH.    VIII- 

secured  by  a  penalty,  rather  than  to  that  which  rested  on  a  simple 
stipulation ; — and  if  the  debts  were  equal,  then  to  that  which  had  been 
first  contracted.  "  In  his  vero,  quae  prassenti  die  debentur,  constat, 
yuctiens  indistincte  quid  solvitur,  in  graviorem  causam  videri  3olutuin, 
Bi  autem  nulla  prsegravet, — id  est  si  omnia  nomina  similia  fuerint, 
antiquiorem  "  (g).  Pothier,  in  his  edition  of  the  Pandects,  has  collected 
together  all  the  texts  of  the  Eoman  law  on  this  subject  (?■) ;  and  he  has 
summed  up  the  general  results  in  his  treatise  on  Obligations  (s). 

§  459e.  In  the  actual  application  of  the  doctrine  to  cases  of 
partnership,  where  a  change  of  the  firm  has  occurred  by  a  dissolution 
by  death  or  otherwise,  the  rule  is,  that  the  estate  of  the  deceased  or 
retiring  partner  is  liable  only  to  the  extent  of  the  balance  due  to  any 

(9)  Dig.  Lib.  46,  tit.  3,  f.  5. 

(r)  Pothier,  Pand.  Lib.  46,  tit.  3,  art.  1,  n.  89  to  99. 

(s)  Pothier,  Oblig.  by  Evans,  n.  528  to  535 ;  ibid.  n.  561  to  n.  572,  French,  2nd  edit. 
1829.  It  may  not  be  without  use  to  insert  here  the  leading  rules  stated  by  Pothier  : 
"  First  Eule.  The  debtor  has  the  power  of  declaring  on  account  of  what  debt  he 
intends  to  apply  the  sum  which  he  pays.  The  reason  which  Ulpian  gives  is  evident, 
'  possumus  enim  certam  legem  dicere,  ei  quod  solvimus.'  According  to  our  rule, 
although  regularly  the  interest  should  be  paid  before  the  principal,  yet  if  the  debtor 
of  the  principal  and  interest,  upon  paying  a  sum  of  money,  has  declared  that  he  paid 
on  account  of  the  principal,  the  creditor  who  has  agreed  to  receive  it  cannot  after-ftrards 
contest  such  application.  Second  Eule.  If  the  debtor,  at  the  time  of  paying,  makes  no 
application,  the  creditor  to  whom  the  money  is  due,  for  different  causes,  may  make 
the  application  by  the  acquittance  which  he  gives.  It  is  requisite,  1st,  that  this 
application  be  made  at  the  instant;  2nd,  that  it  be  equitable.  Third  Rule.  When  the 
application  has  neither  been  made  by  the  debtor  nor  by  the  creditor,  it  ought  to  be 
made  to  that  debt  which  the  debtor  at  the  time  had  the  most  interest  to  discharge. 
The  application  should  rather  be  made  to  a  debt  which  is  not  contested  than  to  one 
that  is ;  rather  to  a  debt  which  was  due  at  the  time  of  payment  than  to  one  which  was 
not.  Among  several  debts  which  are  due  the  application  ought  rather  to  be  made 
to  the  debt  for  which  the  debtor  was  liable  to  be  imprisoned  than  to  debts  merely 
civil,  in  respect  of  which  process  could  only  issue  against  his  effects.  Among  civil 
debts  the  application  should  rather  be  made  to  those  which  produce  interest  than  to 
those  which  do  not.  The  application  ought  rather  to  be  made  to  an  hypothecatory  debt 
than  to  another.  The  application  ought  rather  to  be  made  to  the  debt  for  which  the 
debtor  had  given  sureties  than  to  those  which  he  owed  singly.  The  reason  is,  that  in 
discharging  it,  he  discharges  hmself  from  two  creditors — from  his  principal  creditor 
and  from  his  surety,  whom  he  is  obliged  to  indemnify.  Now,  a  debtor  has  more  interest 
to  be  acquitted  against  two  than  against  a  single  creditor.  The  application  ought 
rather  to  be  made  for  a,  debt  of  which  the  person  who  has  paid  was  principal  debtor, 
than  to  those  which  he  owed  as  surety  for  other  persons.  Fourth  Eule.  If  the  debts 
are  of  an  equal  nature,  and  such  that  the  debtor  had  no  interest  in  acquitting  one 
rather  than  the  other,  the  application  should  be  made  to  that  of  the  longest  standing- 
Observe,  that  of  two  debts  contracted  the  same  day,  but  with  different  terms,  which 
are  both  expired,  the  debt  of  which  the  term  was  the  shorter,  and  consequently  which 
expired  sooner,  is  understood  to  be  the  more  ancient.  Fifth  Eule.  If  the  different 
debts  are  of  the  same  date,  and  in  other  respects  equal,  the  application  should  be 
made  proportionately  to  each.  Sixth  Eule.  In  debts  which  are  of  a  nature  to  produce 
interest,  the  application  is  made  to  the  interest  before  the  principal.  This  holds  good 
even  if  the  acquittance,  imported  that  the  sum  was  paid  to  the  account  of  the  principal 
and  interest,  '  in  sortem  et  usuras.'  The  clause  is  understood  in  this  sense,  that  the 
sum  is  received  to  the  account  of  the  principal  after  the  interest  is  satisfied.  Observe, 
that  if  the  sum  paid  exceeds  what  is  due  for  interest,  the  remainder  is  applied  to  the 
principal,  even  if  the  application  had  been  expressly  made  to  the  interest,  without 
mentioning  the  principal." 


§  459e— 459/.]  account.  187 

creditor  at  the  time  of  the  dissolution ;  and  that  if  the  creditor  continues 
to  keep  a  running  account  with  the  survivors,  or  the  new  firm,  and 
sums  are  paid  to  them  by  the-  creditor,  and  sums  are  drawn  on  their 
firm,  and  paid  by  them,  and  are  charged  and  credited  to  the  general 
account,  and  blended  together  as  a  common  fund,  without  any  distinc- 
tion between  the  sums  due  to  the  creditor  by  the  old  firm  and  the  new ; 
in  such  a  case,  the  sums  paid  to  the  creditor  are  deemed  to  be  paid 
upon  the  general  blended  account,  and  go  to  extinguish,  pro  tanto,  the 
balance  of  the  old  firm,  in  the  order  of  the  earliest  items  thereof.  "  In 
such  a  case  "  (it  has  been  said  by  a  very  able  judge),  "  there  is  no  room 
lor  any  other  appropriation  than  that  which  arises  from  the  order  in 
which  the  receipts  and  payments  take  place,  and  are  carried  into  the 
account.  Presumably,  it  is  the  sum  first  paid  in  that  is  first  drawn  out. 
It  is  the  first  it«m  on  the  debit  side  of  the  account  that  is  discharged, 
or  reduced  by  the  first  item  on  the  credit  side.  The  appropriation  is 
made  by  the  very  act  of  setting  the  two  items  against  each  other. 
Upon  that  principle  all  accounts  current  are  settled,  and  particularly 
cash  accounts.  When  there  has  been  a  continuation  of  dealings,  in 
what  way  can  it  be  ascertained  whether  the  specific  balance,  due  on  a 
given  day,  has  or  has  not  been  discharged,  but  by  examining  whether 
payments  to  the  amount  of  that  balance  appear  by  the  account  to 
have  been  made?  You  are  not  to  take  the  account  backwards,  and 
strike  the  balance  at  the  head,  instead  of  the  foot  of  it.  A  man's 
banker  breaks,  owing  him,  on  the  whole  account,  a  balance  of  £1,000. 
It  would  surprise  one  to  hear  the  customer  say :  '  I  have  been  fortunate 
enough  to  draw  out  all  that  I  paid  in  during  the  last  four  years;  but 
there  is  £1,000  which  I  paid  in  five  years  ago,  that  I  hold  myself  never 
to  have  drawn  out;  and,  therefore,  if  I  can  find  anybody  who  was 
answerable  for  the  debts  of  the  banking-house,  such  as  they  stood  five 
years  ago,  I  have  a  right  to  say,  that  it  is  that  specific  sum  which  is 
still  due  to  me,  and  not  the  £1,000  that  I  paid  in  last  week  '  "  (i). 
This  principle,  as  the  language  of  the  learned  judge  imports,  only 
applies  to  an  account  current  (u),  and  the  creditor  may  be  entitled  to 
close  the  old  account,  and  open  a  fresh  one,  and  make  that  appropria- 
tion which  shall  be  most  favourable  to  him  (x). 

§  459/.  On  the  other  hand,  if,  under  the  like  circumstances, 
moneys  have  been  received  by  the  new  firm,  and  drawn  out  by  the 
creditor  from  time  to  time,  and  upon  the  whole,  the  original  balance 
due  to  the  creditor  has  been  increased,  but  never  at  any  time  been 
diminished,  in  the  hands  of  the  firm;  in  such  a  case,  the  items  of 
payment  made  by  the  new  firm  are  still  to  be  applied  to  the  extinguish- 
ment of  the  balance  of  the  old  firm,  and  will  discharge  the  share  of  the 


(t)  Sir  William  Grant  in  Clayton's  Case,  1  Meriv.  608,  609. 

(u)  The  Mecca,  [1897]  A.  C.  286. 

(x)  In  re  Sherry;  London  and  County  Bk.  v.  Terry,  25  Ch.  D.  692. 


188  EQUITY     JURISPRUDENCE  [CH.    VIII. 

deceased  or  retiring  partner  to  that  extent,  but  no  farther ;  for,  in  such 
a  case,  the  general  rule  as  to  running  accounts  is  applied  with  its  full 
force  (y).  A  fortiori,  where  payments*  have  been  made,  and  no  new 
■sums  have  been  deposited  by  the  creditor  with  the  new  firm,  the 
payments  will  be  applied  in  extinguishment,  pro  tanto,  of  the  balance 
due  by  the  old  firm,  in  the  order  of  the  items  thereof  (a). 

§  459gr.  The  cases  which  we  have  hitherto  been  considering,  are 
cases  of  running  accounts ;  and,  under  such  circumstances,  the  rule 
will  apply  equally  to  cases  where  a  part  of  the  debt  is  secured  by  a 
guaranty  or  by  sureties  as  well  as  where  there  are  no  such  parties  (a). 
But,  where  there  are  no  such  running  accounts,  if  no  special  appro- 
priation is  made  by  the  debtor,  the  creditor  may,  as  we  have  seen  (b), 
apply  the  money  to  any  legal  demand  which  he  has  against  the  debtor, 
whether  it  be  a  balance  of  an  old  account,  or  of  a  new  account;  for  in 
•such  a  case  the  interest  of  third  persons  is  not  concerned,  and  the  case 
of  running  accounts  constitutes,  as  it  were,  an  implied  appropriation 
by  the  parties  to  the  account  generally  (c).  And  payments  made 
generally  by  a  debtor  to  his  creditor  may  be  applied  by  the  creditor  to 
a  balance  due  to  the  creditor,  although  other  debts  have  since  been 
incurred,  upon  which  the  debtor  has  given  a  bond,  with  a  surety,  for 
security  thereof  (d).  A  creditor,  having  several  debts  due  from  the 
same  debtor,  has  a  right  to  ascribe  a  payment  made  indefinitely  and 
without  appropriation  by  his  debtor,  to  whichever  debt  he  may  see 
fit  to  apply  it,  and  is  entitled  to  make  this  appropriation  and  election 
even  at  the  latest  hour,  and  whether  a  reasonable  period  after  the 
payment  has  elapsed  or  not  (e). 

§  459/i.  The  rule  in  Clayton's  Case  does  not  apply  to  the  case  of  a 
trustee  or  any  other  person  in  a  fiduciary  position,  who  has  paid  trust 
money  in  to  his  account  at  his  banker's,  and  mixed  it  with  his  own 
money,  and  afterwards  drawn  out  money  by  cheques  in  the  ordinary 
manner,  on  the  ground  that  we  must  presume  a  man' intended  to  act 
rightly,  unless  we  have  proof  to  the  contrary,   and  that  therefore  a 

{y)  Palmer's  Case,  1  Meriv.  623,  624;  Sleech's  Case,  1  Meriv.  538;  Bodenham  v. 
Furchas,  2  B.  &  Aid.  39.  See  In  re  Mason,  3  Mont.  Deac.  &  De  G.  490;  Law  Maga- 
zine, May  1845,  p.  184. 

(z)  Sleech's  Case,  1  Meriv.  538,  &c. 

(a)  Where  a  compromise  of  three  different  debts  was  made  for  a  sum  less  than 
their  face,  payment  to  be  made  by  instalments,  and  if  any  instalment  not  paid,  creditor 
to  be  remitted  to  his  original  rights,  and  on  the  first  debt  a  judgment  had  been 
recovered,  making  it  a  lien  on  land  :  Held,  that  as  against  subsequent  incumbrancers 
an  instalment  must  be  applied  pro  ratA  to  the  three  debts.  Thompson  v.  Hudson, 
li.  R.  6  Ch.  320. 

(fc)  Ante,  §  459  b. 

(c)  Bosanquet  v.  Wray,  6  Taunt.  597;  Brooke  v.  Enderby,  2  Brod.  &  Bing.  70. 

(d)  Kirby  v.  Duke  of  Marlborough,  2  M.  &  S.  18;  Williams  v.  Rawlinson,  3  Bing. 
71. 

(e)  Clayton's  Case,  1  Mer.  606 ;  Simson  v.  Ingham,  2  B.  &  C.  65 ;  Hooper  v.  Keay, 
1  Q.  B.  D.  178;  Friend  v.  Young,  [1897]  2  Ch.  421;  Seymour  v.  Pickett,  [1905]  1 
K.  B.  715. 


§  46%— 462.]  ACCOUNT.  189 

trustee  must  be  considered  to  have  drawn  out  his  own  money,  in  prefer- 
ence to  the  trust  money,  unless  clearly  intended  for  the  purposes  of  the' 
trust  (/).  It  was  held  also  in  the  case  which  decided  this  point  by 
^^y,  J-.  that  as  between  two  cestuis  que  trust  whose  money  the  trustee 
has  paid  in  to  his  own  account  at  the  banker's,  the  rule  in  Clayton's 
Case  does  apply,  but  the  Court  of  Appeal  pronounced  no  opinion  on 
this  point. 

§  460.  In  cases  of  account  not  founded  in  any  such  privity  of  con- 
tract, but  founded  upon  relations  and  duties  required  by  law,  or  upon 
torts  and  constructive  trust,  for  which  equitable  redress  is  sought,  it 
is  more  difficult  to  trace  out  a  distinct  line,  where  the  legal  remedy 
ends,  and  the  equitable  jurisdiction  begins. 

§  461.  In  our  subsequent  examination  of  this  branch  of  jurisdiction, 
it  certainly  would  not  be  going  beyond  its  first  boundaries  to  include 
within  it  all  subjects  which  arise  from  the  two  great  sources  already 
indicated,  and  terminate  in  matters  of  account ;  namely,  first,  such  as 
have  their  foundation  in  contract,  or  quasi  contract,  and,  secondly, 
such  as  have  their  foundation  in  trusts,  actual  or  constructive,  or  in 
torts  affecting  property.  But,  as  many  cases  included  under  one  head 
are  often  connected  with  principles  belonging  to  the  other,  and  as  the 
jurisdiction  of  courts  of  equity  is  often  exercised  upon  various  grounds, 
not  completely  embraced  in  either ;  or  upon  mixed  considerations ;  it 
will  be  more  convenient,  and  perhaps  not  less  philosophical,  to  treat  the 
various  topics  under  their  own  appropriate  heads,  without  any  nice 
discrimination  between  them.  We  may  thus  bring  together  in  this 
place  such  topics  only  as  do  not  seem  to  belong  to  more  enlarged  sub- 
jects, or  such  as  do  not  require  any  elaborate  discussion,  or  such  as 
peculiarly  furnish  matter  of  illustration  of  the  general  principles  which 
regulate  the  jurisdiction. 

§  462.  Let  us,  then,  in  the  first  place,  bring  together  some  cases 
arising  ex  contractu,  or  quasi  ex  contractu,  and  involving  accounts. 
And  here,  one  of  the  most  general  heads  is  that  of  agency,  where  one 
person  is  employed  to  transact  the  business  of  another  for  a  recompense 
or  compensation.  The  most  important  agencies  of  this  sort  which  fall 
under  the  cognizance  of  courts  of  equity,  are  those  of  solicitors,  factors, 
bailiffs,  consignees,  receivers,  and  stewards.  In  most  agencies  of  this 
sort,  there  are  mutual  accounts  between  the  parties ;  or,  if  the  account 
is  on  one  side,  as  the  relation  naturally  gives  rise  to  great  personal 
confidence  between  the  parties,  it  rarely  happens  that  the  principal 
is  able,  in  cases  of  controversy,  to  establish  his  rights,  or  to  ascertain 
the  true  state,  of  the  accounts,  without  resorting  to  a  discovery  from 
the  agent.  Indeed,  in  cases  of  factorage  and  consignments,  and 
general  receipts  and  disbursements  of  money  by  receivers  and  stewards, 
it  can  scarcely  be  possible,  if  the  relation  has  long  subsisted,  that  very 

(/)  Knatohbull  v.  Hughes  Hallett,  13  Ch.  D.  696. 


190  EQUITY     JURISPRUDENCE.  [CH.    VIII. 

intricate  and  perplexing  accounts  should  not  have  arisen,  where,  inde- 
pendently of  a  discovery,  the  remedy  of  the  principal  would  be  utterly 
nugatory,  or  grossly  defective.  It  would  be  rare,  that  specific  sales 
and  purchases,  and  the  charges  growing  out  of  them,  could  be  ascer- 
tained and  traced  out  with  any  reasonable  certainty;  and  still  more 
rare,  that  every  receipt  and  disbursement  could  be  verified  by  direct 
and  positive  evidence.  Courts  of  equity  in  all  such  agencies  require 
that  the  agent  should  keep  regular  accounts  of  all  his  transactions,  with 
suitable  vouchers  (g).  And  it  is  obvious,  that  if  he  can  suppress  all 
means  of  access  to  his  books  of  account  and  vouchers,  the  principal 
would  be  utterly  without  redress,  except  by  the  searching  power  of 
discovery,  and  the  close  inspection  of  all  books,  under  the  authority 
and  guidance  of  a  master  in  chambers.  The  legal  obligation  of  an 
agent  to  keep  accounts  may  be  displaced  by  the  terms  of  his  appoint- 
ment, and  this  may  be  inferred  from  a  course  of  dealing  between  the 
principal  and  his  agent  (h).  Besides,  agents  are  not  only  responsible 
for  a  due  account  of  all  the  property  of  their  principals,  but  also  for  all 
profits  which  they  have  clandestinely  obtained  by  any  improper  use  of 
that  property  (;).  And  the  only  adequate  means  of  reaching  such 
profits  must  be  by  discovery.  In  cases  of  fraud,  also,  it  is  almost 
impracticable  to  thread  all  the  intricacies  of  its  combinations,  except 
by  searching  the  conscience  of  the  party,  and  examining  his  books  and 
vouchers  (fe).  An  agent  could  not  maintain  a  suit  in  equity  against  his 
principal  for  an  account  unless  he  made  out  a  special  case,  and  a 
servant  who  was  to  be  remunerated  by  a  share  of  the  profits  stood  in 
the  same  situation  (1). 

§  463.  In  agencies  also  of  a  single  nature,  such  as  a  single  consign- 
ment, or  the  delivery  of  money  to  be  laid  out  in  the  purchase  of  an 
estate,  or  of  a  cargo  of  goods ;  or  to  he  paid  over  to  a  third  person ; 
although  a  suit  at  law  may  be  often  maintainable,  yet,  if  the  thing 
lie  in  privity  of  contract  and  personal  confidence,  the  aid  of  a  court 
of  equity  is  often  indispensable  for  the  attainment  of  justice.  Even 
when  not  indispensable,  it  may  often  be  exceedingly  convenient  and 
effectual,  and  prevent  a  multiplicity  of  suits.  The  party  in  such  cases 
often  has  an  election  of  remedy.  This  doctrine  was  expounded  with 
great  clearness  and  force  by  Lord  Chief  Justice  Willes,  in  delivering 
the  opinion  of  the  court,  in  a  celebrated  case.  Speaking  of  the  pro- 
priety of  sometimes  resorting  to  a  suit  at  law,  he  said:  "  Though  a 
l)ill  in  equity  may  be  proper  in  several  of  these  cases,  yet  an  action 

(g)  Pearce  v.  Green,  1  Jac.  &  Walk.  135;  Clarke  v.  Tipping,  9  Beav.  284;  Make- 
peace v.  Rogers,  i  De  G.  J.  &  S.  649.     See  Gookes  v.  Cookes,  9  Jur.  N.  S.  843. 

(h)  Tindall  v.  Powell,  4  Jur.  N.  S.  944.  Cj.  Lord  Salisbury  v.  Wilkinson,  cited 
6  Vea.  48. 

(i)  Massey  v.  Davies,  2  Vea.  Jun.  318. 

(k)  Earl  of  Hariwicke  v.  Vernon,  14  Ves.  510. 

(I)  Harrington  v.  Churchward,  29  L.  J.  Ch.  521;  Smith  v.  Leveaux,  2  De  G  J  & 
&.  1. 


§  463—465.]  ACCOUNT.  191 

at  law  will  lie  likewise.  As  if  I  pay  money  to  another,  to  lay  out  in 
the  purchase  of  a  particular  estate,  or  any  other  thing,  I  may  either 
bring  a  bill  against  him,  considering  him  as  a  trustee,  and  praying  that 
hfi  may  lay  out  the  money  in  that  specific  thing;  or  I  may  bring  an 
action  against  him,  as  for  so  much  money  had  and  received  for  my 
use.  Courts  of  equity  always  retain  such  bills,  when  they  are  brought 
under  the  notion  of  a  trust;  and  therefore,  in  this  very  case  [a  con- 
signment to  a  factor  for  sale],  they  have  often  given  relief,  where  the 
party  might  have  had  his  remedy  at  law,  if  he  had  thought  proper  to 
proceed  in  that  way  "  (m). 

§  464.  Perhaps  the  doctrine  here  laid  down,  although  generally 
true,  is  a  little  too  broadly  stated.  The  true  source  of  jurisdiction  in 
such  cases,  is  not  the  mere  notion  of  a  virtual  trust;  for  then  equity 
jurisdiction  would  cover  every  case  of  bailment.  But  it  took  its  rise 
from  the  necessity  of  reaching  the  facts  by  a  discovery ;  and  having 
jurisdiction  for  such  a  purpose,  the  court,  to  avoid  multiplicity  of  suits, 
then  proceeded  to  administer  the  proper  relief  (n).  And  hence  it  is  that 
in  the  case  of  a  single  consignment  to  a  factor  for  sale,  a  court  of  equity 
would  entertain  the  suit  for  relief,  as  well  as  discovery;  there  being 
accounts  and  disbursements  involved,  which,  generally  speaking,  could 
not  be  so  thoroughly  investigated  at  law  (o),  although  (as  we  have  seen) 
a  court  of  equity  was  cautious  of  entertaining  suits  upon  a  single  trans- 
action, where  there  were  not  mutual  accounts.  Nay,  so  far  had  the 
doctrine  been  carried,  that  even  though  the  case  might  appear,  as  a 
matter  of  account,  to  be  perfectly  remediable  at  law ;  yet  if  the  parties 
had  gone  on  to  a  hearing  of  the  merits  of  the  cause,  without  any 
preliminary  objection  being  taken  to  the  jurisdiction  of  the  court  upon 
this  ground,  the  court  would  not  then  suffer  it  to  prevail,  but  would 
administer  suitable  relief. 

§  465.  Cases  of  account  between  trustees  and  cestuis  que  trust  may 
properly  be  deemed  confidential  agencies,  and  are  peculiarly  within 
the  appropriate  jurisdiction  of  courts  of  equity.  The  same  general 
rules  apply  here,  as  in  other  cases  of  agency.  A  trustee  is  never 
permitted  to  make  any  profit  to  himself  in  any  of  the  concerns  of  his 
trust  (p).  On  the  other  hand,  he  is  not  liable  for  any  loss  which  occurs 
in  the  discharge  of  his  duties,  unless  he  has  been  guilty  of  negligence, 
malversation,  or  fraud,  the  burden  being  upon  him  to  show  matter  of 
justification  in  order  to  relieve  himself  from  liability  (q).  The  same 
doctrine   is   applicable   to   cases   of  guardians   and   wards,    and   other 

(m)  Scott  V.  Surman,  Willes  405. 

(n)  Ante,  §  71 ;  3  Black.  Coram.  437 ;  Mackenzie  v.  Johnston,  4  Mad.  374 ;  Pearce 
V.  Green,  1  Jac.  &  Walk.  135. 

(o)  Mackenzie  v.  Johnston,  i  Mad.  374;  Barry  v.  Stevens,  31  Beav.  258. 

(p)  Fox  V.  Mackreth,  2  Bro.  C.  C.  400;  2  Cox  158,  320;  4  Bro.  P.  C.  258;  Docker 
V.  Somes,  2  M.  &  K.  655. 

(g)  Jones  v.  Lewis,  2  Ves.  Sen.  241;  Job  v.  Job,  7  Ch.  D.  562;  Briggs  v.  Massey, 
51  L.  J.  Ch.  447 ;  In  re  Brogden ;  Billing  v.  Brogden,  38  Ch.  D.  546. 


192  EQUITY     JUEISPRUDENCE.  [CH-    VlII, 

relations  of  a  similar  nature.  Directors  of  private  companies  are  not 
allowed  to  make  a  clandestine  profit  out  of  their  dealings  with  the 
companies  which  they  manage  (r). 

§  466.  Cases  of  account  between  partners,  between  part-owners  of 
ships,  and  between  owners  of  ships  and  the  masters,  fall  under  the  like 
considerations.  They  all  involve  peculiar  agencies  like  those  of  bailiffs, 
or  managers  of  property,  and  require  the  same  operative  power  of 
discovery,  and  the  same  interposition  of  equity  (s).  The  learned  author 
compared  the  liability  of  a  co-owner  of  property  to  account  in  equity  (f) 
or  under  the  statute  of  4  Anne,  c.  16,  to  his  co-owner  for  receiving  more 
than  his  share  to  that  of  a  bailiff,  but  this  view  has  been  judicially 
denied  (u). 

§  467.  In  many  cases  of  frauds  by  an  agent  a  court  of  common  law 
cannot  administer  effectual  remedies;  as,  for  instance,  it  cannot  give 
damages  against  his  estate  for  a  loss  arising  from  his  tort-s,  when  such 
torts  die  with  the  person ;  and  a  fortiori,  the  rule  will  apply  to  courts  of 
equity,  which  did  not,  as  the  Chancery  Division  is  bound  to  do  by  the 
Judipature  Act,  1873,  entertain  suits  for  damages.  But,  where  the 
tort  arises,  in  the  course  of  an  agency,  from  a  fraud  of  the  agent,  and 
respects  property,  courts  of  equity  did  treat  the  loss  sustained  as  a  debt 
against  his  estate  (a;). 

§  468.  Courts  of  equity  adopt  very  enlarged  views  in  regard  to 
the  rights  and  duties  of  agents;  and  in  all  cases  where  the  duty  of 
keeping  regular  accounts  and  vouchers  is  imposed  upon  them,  they 
will  take  care  that  the  omission  to  do  so  shall  not  be  used  as  a  means 
of  escaping  responsibility,  or  of  obtaining  undue  recompense.  If  an 
accountable  party  does  not  keep  proper  and  regular  accounts  and  retain 
vouchers  (where  it  is  customary  to  give  receipts)  (y),  the  court  may 
make  a  penal  order,  fixing  the  accountable  party  with  a  sum  arbitrarily 
assessed  (z) ;  further  than  this  he  vs'ill  not  be  allowed  the  compensation 
vy^hich  otherwise  would  belong  to  his  agency  (a).  Upon  similar  grounds, 
as  an  agent  is  bound  to  keep  the  property  of  his  principal  distinct  from 
his  own,  if  he  mixes  it  up  with  his  own,  the  whole  will  be  taken,  both 
at  law  and  in  equity,  to  be  the  property  of  the  principal  until  the  agent 
puts   the   subject-matter   under   such   circumstances   that   it   may   be 

(r)  Benson  v.  Heathorn,  1  Y.  &  C.  Ch.  326;  Tyrrell  v.  Bank  of  London,  10  H  L. 
C.  26. 

(s)  Green  v.  Briggs,  6  Hare,  395;  Turquand  v.  Wilson,  1  Ch.  D.  85. 

(t)  Denys  v.  Shuckburgh,  i  Y.  &  C.  Ex.  42;  Job  v.  Cordeaux,  i  W.  R.  806;  Job 
V.  Potton,  L.  E.  20  Bq.  84. 

(u)  Kennedy  v.  De  Trafford,  [1897]  A.  C.  180. 

(x)  Lord  Hardwicke  v.   Vernon,  4  Ves.  418. 

iy)  Skipieorth  v.  Skipworth,  9  L.  J.  N.  S.  Ch.  182;  Cookes  v.  Gookes,  9  Jur.  N  S. 
843. 

(z)  Walmsley  v.  Walmsley,  3  Jo.  &  L.  556;  Duke  of  Leeds  v.  Earl  of  Amherst 
20  Beav.  239. 

(a)  WJnte  v.  Lady  Lincoln,  8  "Ves.  363;  Gray  v.  Haiq,  20  Beav.  219.  Gf.  Andrews 
V.  Ramsay,  [1903]  2  K.  B.  635. 


§  464 — 470.]  ACCOUNT — appoetionment.  193 

distinguished  as  satisfactorily  as  it  might  have  been  before  the 
unauthorized  mixture  on  his  part  (b).  In  other  words,  the  agent  is 
put  to  the  necessity  of  showing  clearly  what  part  of  the  property 
belongs  to  him;  and  soi  far  as  he  is  unable  to  do  this,  it  is  treated 
as  the  property  of  his  principal.  Courts  of  equity  do  not  in  these 
oases  proceed  upon  the  notion  that  strict  justice  is  done  between 
the  parties;  but  upon  the  ground  that  it  is  the  only  justice  that  can 
be  done;  and  that  it  would  be  inequitable  to  suffer  the  fra,ud  or 
negligence  of  the  agent  to  prejudice  the  rights  of  his  principal  (c). 

§  469.  Another  head  is  that  of  Apportionment,  Contribution, 
and  General  Average,  which  are  in  some  measure  blended  together, 
and  require  and  terminate  in  accounts.  In  most  of  these  cases,  a 
discovery  is  indispensable  for  the  purposes  of  justice ;  and  where 
this  does  not  occur,  there  were  other  distinct  grounds  for  the  exercise 
of  equity  jurisdiction,  in  order  to  avoid  circuity  and  multiplicity  of 
actions.  Some  cases  of  this  nature  spring  from  contract;  others, 
again,  from  a  legal  duty,  independent  of  contract;  and  others,  again, 
from  the  principles  of  natural  justice,  confirming  the  known  maxim 
of  the  law,  Qui  sentit  ccnnmoduvt,  sentire  debet  et  onus.  The  two 
latter  may,  therefore,  properly  be  classed  among  obligations  resulting 
quasi  ex  contractu  (d).  This  will  abundantly  appear  in  the  sequel  of 
these  Commentaries. 

§  470.  And  first,  as  to  Apportionment  and  Conteibution,  which 
may  conveniently  be  treated  together.  Lord  Coke  has  remarked 
that  the  word  apportionment  "  cometh  of  the  word  portio,  quasi 
partio,  which  signifieth  a  part  of  the  whole,  and  apportion  signifieth 
a  division  of  a  rent,  common,  &o.,  or  a  making  of  it  into  parts  "  (e). 
It  is  sometimes  used  to  denote  the  distribution  of  a  common  fund,  or 
entire  subject  among  all  those  who  have  a  title  to  a  portion  of  it  (/). 
Sometimes,  indeed,  in  a  more  loose  but  an  analogous  sense,  it  is 
used  to  denote  the  contribution,  which  is  to  be  made  by  different 
persons,  having  distinct  rights,  towsCrds  the  discharge  of  a  common 
burden  or  charge  to  be  borne  by  all  of  them.  In  respect,  then,  to 
apportionment  in  its  application  to  contracts  in  general,  it  is  the 
known  and  familiar  principle  of  the  common  law,  that  an  entire 
contract  is  not  apportionable.  The  reason  seems  to  be,  that  as  the 
contract  is  founded  upon  a  consideration  dependent  upon  the  entire 
performance  of  the  act,  and  if  from  any  cause  it  is  not  wholly  per- 
formed, the  casus  foederis  does  not  arise,  and  the  law  will  not  make 
provisions  for  exigencies  which  the  parties  have  neglected  to  provide 

(6)  Lupton  V.  White,  15  Ves.  432;  re  Oatway ;  Hertslet  v.  Oatway,  [1903]  2  Ch. 
356. 

(c)  Lupton  V.  White,  16  Ves.  432,  441. 

id)  Dering  v.  Ear),  of  Winchelsea,  1  Cox  318 ;  s.c.  2  Bros.  &  Pul.  270. 

(e)  Co.  Litt.  1476. 

(/)  Ex  parte  Smyth,  1  Swanst.  338,  339,  the  reporter's  note. 

E.J.  13 


194  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

for  themselves.  Under  such  circumstances,  it  is  deemed  wholly 
immaterial  to  the  rights  of  the  other  party,  whether  the  non- 
performance has  arisen  from  the  design  or  negligence  of  the  party 
bound  to  perform  it,  or  to  inevitable  casualty  or  accident  (g).  In  each 
case  the  contract  has  not  been  completely  executed.  The  same  rule 
is  applied  to  cases  where  the  payment  is  to  be  made  under  a  contract 
upon  the  occurrence  of  a  certain  event  or  upon  certain  conditions. 
In  the  application  of  this  doctrine  of  the  common  law,  courts  of 
equity  have  generally,  but  not  universally,  adopted  the  maxim, 
Mquitas  sequitur  legem  (h).  Whether  rightly  or  wrongly,  it  is  now 
too  late  to  inquire,  although,  as  a  new  question,  there  is  much 
doubt,  whether  in  so  adopting  the  maxim  they  have  not  in  many 
eases  deserted  the  principles  of  natural  justice  and  equity,  as  well 
as  the  analogies  by  which  they  were  governed  in  other  instances, 
in  which  they  have  granted  relief.  We  have  already  had  occasion 
to  cite  cases  in  which  this  rigid  doctrine  as  to  non-apportionment 
has  been  applied  (i).  There  are,  however,  some  exceptions  to  the  rule 
both  at  law  and  in  equity,  which  we  shall  presently  have  occasion 
to  consider,  and  some  in  which  courts  of  equity  have  granted  relief, 
where  it  would  at  least  be  denied  at  law  (fc). 

§  471.  At  the  common  law,  the  cases  were  few  in  which  an 
apportionment  under  contract  was  allowed,  and  general  doctrine  being 
against  it,  unless  specially  stipulated  by  the  parties.  Thus,  for 
instance,  where  a  person  was  appointed  collector  of  rents  for  another, 
and  was  to  receive  £100  per  annum  for  his  services;  and  he  died 
at  the  end  of  three-quarters  of  the  year,  while  in  the  service ;  it  was 
held,  that  his  executor  could  not  recover  £75  for  the  three-quarters' 
service,  upon  the  ground  that  the  contract  was  entire,  and  there 
could  be  no  apportionment;  for  the  maxim  of  the  law  is.  Annua  nee 
debitum  judex  non  separat  ipsum  (I).  So,  where  the  mate  of  a  ship 
engaged  for  a  voyage  at  thirty  guineas  for  the  voyage,  and  died 
during  the  voyage,  it  was  held,  that  at  law  there  could  be  no  appor- 
tionment of  the  wages  (m). 

§  472.  Courts  of  equity,  to  a  considerable  extent,  act  upon  this 
maxirn  of  the  common  law  in  regard  to  contracts.  The  Court  of 
Chancery,  upon  some  supposed  equity,  allowed  a  claim  in  special 
cases,   for  the   return   of   an   apportioned   part    of   an   apprenticeship 

(g)  Paradine  v.  Jane,  Aleyn  26,  27;  Story  on  Bailments,  §  36;  Ex  parte  Smyth, 
1  Swanst.  338,  339,  the  reporter's  note,  and  cases  cited. 

(h)  Post,  §  483. 

(i)  Ante,  §§  101  to  104. 

(ft)  Post,  §§  472,  479. 

(!)  Co.  Litt.  150o,-  Countess  of  Plymouth  v.  ThrogmoHon,  1  Salk.  65,  3  Mod.  153. 

(m)  Cutter  v.  Powell,  6  T.  E.  320.  See  now  Merchant  Shipping  Act,  1894, 
ss.  156,  157,  and  Button  v.  Thompson,  L.  E.  4  C.  P.  330. 

in)  Hirst  v.  Tolson,  2  Mac.  &  G.  34;  Webb  v.  England,  29  Beav.  44.  See  ante, 
§  89. 


§  471 — 475.]  ACCOUNT — apportionment.  •  195 

premium  (n).  Even  a  court  of  common  law  was  beguiled  into 
committing  the  same  error  where  the  master  was  a  solicitor,  and 
deciding  "  according  to  law  and  conscience,  and  not  by  any  technical 
rules  "  in  the  exercise  of  an  assumed  jurisdiction  over  solicitors  as 
officers  of  the  court  (o).  In  modem  times  a  general  or  particular 
jurisdiction  to  disregard  the  law  of  contract  has  been  disclaimed  (p). 
"  Courts  of  equity  do  not  rectify  contracts,"  said  James,  V.-C.  (pp). 
The  proper  course  is  to  make  a  return  of  the  premium  the  subject- 
matter  of  express  stipulation  (q).  An  apportioned  part  of  a  premium 
paid  upon  entering  into  a  partnership  may  be  recovered  under  section 
40  of  the  Partnership  Act,  1890  (53  &  54  Viot.  c.  39),  which 
embodies  the  earlier  law  (r),  and  is  in  these  terms:  "Where  one 
partner  has  paid  a  premium  to  another  on  entering  into  a  partnership 
for  a  fixed  term,  and  the  partnership  is  dissolved  before  the  expiration 
of  that  term  otherwise  than  by  the  death  of  a  partner,  the  court 
may  order  the  repayment  of  the  premium,  or  of  such  part  thereof 
as  it  thinks  just,  having  regard  to  the  terms  of  the  partnership 
contract  and  to  the  length  of  time  during  which  the  partnership 
has  continued ;  unless  (a)  the  dissolution  is  wholly  or  chiefly  due 
to  the  misconduct  of  the  partner  who'  paid  the  premium,  or  (b)  the 
partnership  has  been  dissolved  by  an  agreement  containing  no  provision 
for  a  return  of  any  part  of  the  premium."  In  the  case  of  a  partner- 
ship, the  amount  to  be  returned  is  ascertained  as  a  simple  proportion 
sum  (s).  This  could  never  be  justified  if  the  rule  applied  to  an 
apprenticeship,  for  the  value  of  the  services  of  an  apprentice  increases 
progressively. 

§  475.  In  regard  to  rents,  the  general  rule  at  the  common  law 
leaned  strongly  against  any  apportionment  thereof.  Hence  it  was 
well  established,  that,  in  case  of  the  death  of  a  tenant  for  life,  in  the 
interval  between  two  periods,  at  each  of  which  a  portion  of  rent 
becomes  due  from  the  lessee,  no  rent  could  be  recovered  for  the 
occupation  since  the  first  of  these  periods  (t).  The  rule  seems  to  have 
been  rested  on  two  propositions :  1st,  That  the  entire  contract  cannot 
be  apportioned.  2nd,  That  under  a  lease  with  a  periodical  reservation 
of  rent,  the  contract  for  the  payment  of  each  portion  is  distinct  and 
entire.  Hence  it  followed,  that,  on  the  determination  of  a  lease  by 
the  death  of  the  lessor  before  the  day  appointed  for  the  payment  of 

(o)  Ex  parte  Bayley,  9  B.  &  C.  691. 

(p)  Whincup  V.  Hughes,  L.  B.  6  C.  P.  78;  Craven  v.  Stubbing,  34  L.  J.  Ch.  126; 
Ferns  v.  Carr,  28  Ch.  D.  409. 

(pp)  Mackenzie  v.  Coulson,  L.  E.  8  Eq.  375. 

(q)  Derby  v.  Humber,  L.  E.  2  C.  P.  247. 

(r)  Lee  v.  Page,  30  L.  J.  Ch.  857;  Atwood  v.  Maude,  L.  E.  3  Ch.  369;  Lyon  v. 
Tweddell,  17  Ch.  D.  529;  Edmunds  v.  Robinson,  29  Ch.  D.  170;  Yates  v.  Cousins, 
60  L.  T.  535 ;  Belfield  v.  Bourne,  [1894]  1  Ch.  521. 

(s)  Pease  v.  Hewitt,  31  Beav.  22;  Wilson  v.  Johnstone,  L.  E.  16  Bq.  606. 

(t)  Clun's  Case,  10  Co.  127 ;  Ex  .parte  Smyth,  1  Swanst.  338,  and  note. 


196  ■  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

the  rent,  the  event,  on  the  conapletion  of  which  the  payment  was 
stipulated,  namely,  occupation  of  the  lands  during  the  period  stipu- 
lated, never  occurring,  no  rent  became  payable,  and  in  respect  of 
time,  apportionment  was  not  in  any  case  permitted. 

§  475a.  There  is  a  rule  of  administration,  known  as  the  rule  in 
Howe  V.  Lord  Dartmouth  {v.),  which  is  discussed  hereafter  (x),  and 
which  entitles  a  remainderman  of  settled  residuary  estate  (y)  to 
require  wasting  property  to  be  converted  and  invested  in  permanent 
securities.  The  tenant  for  life  enjoys  a  correlative  right  where 
reversionary  property  falls  into  possession  subsequently  to  the  death 
of  the  testator  to  claim  an  apportioned  part  of  the  fund  on  the 
footing  that  it  represents  income  (z).  And  where  the  testator's 
residuary  estate  consists  of  a  debt  which,  owing  to  the  insolvency 
of  the  debtor,  is  not  received  until  after  the  testator's  death,  the 
tenant  for  life  is  entitled  to  an  apportioned  part  of  the  sum  received 
on  the  footing  that  it  is  interest  (a). 

§  476.  The  common  law  rule  as  to  apportionment  was  entirely 
done  away  with  by  the  Apportionment  Act,  1870  (33  &  34  Vict.  c.  35), 
which  embodies  and  extends  earlier  enactments  (b)  to  the  same 
effect  and  provides,  s.  2:  "From  and  after  the  passing  of  this  Act, 
all  rents,  annuities,  dividends,  and  other  periodical  payments  in  the 
nature  of  income  (whether  reserved,  or  made  payable  under  any 
instrument  in  writing  or  otherwise),  shall,  like  interest  on  money 
lent,  be  considered  as  accruing  from  day  to  day,  and  shall  be  apportion- 
able  in  respect  of  time  accordingly."  S.  3:  "  The  apportioned  part 
of  any  such  rent,  annuity,  dividend,  or  other  payment,  shall  be 
payable  or  recoverable  in  the  case  of  a  continuing  rent,  annuity, 
or  other  such  payment,  when  the  entire  portion  of  which  such 
apportioned  part  shall  form  part  shall  become  due  and  payable,  and 
not  before ;  and  in  the  case  of  a  rent,  annuity,  or  other  such  payment 
determined  by  re-entry,  death,  or  otherwise,  when  the  next  entire 
portion  of  the  same  would  have  been  payable  if  the  same  had  not 
so  determined,  and  not  before."  S.  4:  "All  persons  and  their 
respective,  heirs,  executors,  administrators,  and  assigns,  and  also  the 
executors,  administrators,  and  assigns  respectively  of  persons  whose 
interests  determine  with  their  own  deaths,  shall  have  such  or  the 
same  remedies  at  law  and  in  equity  for  recovering  such,  apportioned 
parts  as  aforesaid  when  payable  (allowing  proportionate  parts  of  all 
just  allowances),  as  they  respectively  would  have  had  for  recovering 
such    entire    portions    as    aforesaid    if   entitled    thereto    respectively; 

(u)  6  Ves.  96. 
(x)  §  1269. 

(y)  Bethune  v.  Kennedy,  1  M.  &  Cr.  114;  In  re  Van  Stranbenzee ;  Boustead  v. 
Cooper,  [1901]  2  Oh.  779. 

(z)  In  re  Earl  of  Chesterfield's  Trusts,  24  Ch.  D.  643. 

(a)  Turner  v.  Newport,  2  Ph.  14. 

(b)  11  Geo.  2,  c.  19,  s.  15 ;  4  &  5  Will.  4,  c.  22. 


§  475a — 478.]  account — apportionment.  197 

provided  that  persons  liable  to  pay  rents  reserved  out  of  or  charged 
on  lands  or  other  hereditaments  of  any  tenure,  and  the  same  lands 
or  other  hereditaments  shall  not  be  resorted  to  for  any  such  apportioned 
part  forming  part  of  an  entire  or  continuing  rent  as  aforesaid 
specifically ;  but  the  entire  or  continuing  rent,  including  such 
apportioned  part,  shall  be  recovered  and  received  by  the  heir  or 
other  person  who,  if  the  rent  had  not  been  apportionable  under  this 
Act,  or  otherwise,  would  have  been  entitled  to  such  entire  or  con- 
tinuing rent,  such  apportioned  part  shall  be  recoverable  from  such 
heir  or  other  person  by  the  executors,  or  other  parties  entitled  under 
this  Act  to  the  same,  by  action  at  law,  or  suit  in  equity."  By  s.  7, 
the  provisions  of  the  Act  are  not  to  extend  to  any  case  in  which 
it  is  or  shall  expressly  be  stipulated  that  no  apportionment  shall  take 
place  .(c). 

§  477.  On  the  other  hand,  cases  may  easily  be  stated  where 
apportionment  of  a  common  charge,  or,  more  properly  speaking, 
where  contribution  towards  a  common  charge,  seems  indispensable 
for  the  purposes  of  justice,  and  accordingly  has  been  declared  by  the 
common  law  in  the  nature  of  an  apportionment  towards  the  discharge 
of  a  common  burden.  Thus,  if  a  man,  owning  several  acres  of  land, 
was  bound  in  a  judgment  or  statute  or  recognizance  operating  as  a 
lien  on  the  land,  and  afterwards  he  aliened  one  acre  to  A.,  another  to 
B.,  and  another  to  C,  &c. ;  there,  if  one  alienee,  was  compelled,  in 
order  to  save  his  land,  to  pay  the  judgment,  statute,  or  recognizance, 
he  was  entitled  at  the  common  law  to  contribution  from  the  other 
alienees  (d).  The  same  principle  was  applied  in  the^ike  case,  where 
the  land  descended  to  parceners  who  made  partition  ;•  and  then,  one 
was  compelled  to  pay  the  whole  charge ;  contribution  would  lie  against 
the  other  parceners.  The  same  doctrine  was  also  applied  to  co- 
feoffees  of  the  land,  or  of  different  parts  of  the  land.  In  all  these 
cases  (and  others  might  be  mentioned),  a  writ  of  contribution  would 
lie  at  the  common  law,  or  in  virtue  of  the  statute  of  Marlbridge  (e). 

§  478.  But  there  were  many  difficulties  in  proceeding  in  cases 
where  an  apportionment  or  contribution  was  allowed  at  the  common 
law ;  for,  where  the  parties  were  numerous,  as  each  was  Uable  to  con- 
tribute only  for  his  own  portion,  separate  actions  and  verdicts  were 
necessary  against  each.  And  thus  a  multiplicity  of  suits  might 
take  place,  and  no  judgment  in  one  suit  was  conclusive  in  regard  to 
the  amount  of  contribution  in  a  suit  against  another  person.  The 
like  difficulty  might  arise  in  cases  where  an  apportionment  was  to  be 

(c)  The  Apportionment  Act  does  not  apply  to  payments  under  order  of  court  : 
Jodrell  V.  Jodrell,  L.  E.  7  Eq.  461;  nor  to  parish  rates  :  In  re  Wearmouth  Crown 
Glass  Company,  19  Ch.  D.  640.     See  also  Barker  v.  Perowne,  18  Ch.  D.  180. 

(d)  HarbeH's  Case,  3  Co.  12,  13. 

(e)  See  Harbert's  Case,  3  Co.  lib ;  Bering  v.  Earl  of  Winchelsea,  1  Cox  321 ;  s.c. 
2  Bos.  &  Pul.  270;  Co.  Litt.  165  a;  Pitzherbert,  Nat.  Brev.  16. 


198  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

made  under  a  contract  for  the  payment  of  money  or  rent,  where  the 
parties  were  numerous  and  the  circumstances  complicated.  Whereat^. 
in  equity,  all  parties  could  at  once  be  brought  before  the  court  in  a 
single  suit;  and  the  decree  apportioning  the  rent  was  thus  con- 
clusive upon  all  the  parties  in  interest  (/). 

§  479.  But  the  ground  of  equity  jurisdiction,  in  cases  of  appor- 
tionment of  rent  and  other  charges  and  claims,  did  not  arise  solely 
from  the  defective  nature  of  the  remedy  at  common  law,  where  such 
a  remedy  existed.  It  extended  to  a  great  variety  of  cases  where  no 
remedy  at  all  existed  in  law,  and  yet  where,  ex  sequo  et  bono,  the  party 
was  entitled  to  relief  (g).  Thus,  for  instance,  where  a  plaintiff  was 
lessee  of  divers  lands  upon  which  an  entire  rent  was  reserved,  and 
afterwards  the  inhabitants  of  the  town,  where  part  of  the  lands  lay, 
claimed  a  right  of  common  in  part  of  the  lands  so  let,  and,  upon  a 
trial,  succeeded  in  establishing  their  right;  in  this  case  there  could 
be  no  apportionment  of  the  rent  at  law,  because,  although  a  right  of 
common  was  recovered,  there  was  no  eviction  of  the  land.  But  it  was 
not  doubted  that  in  equity  a  bill  was  maintainable  for  an  apportion- 
ment, if  a  suitable  case  for  relief  were  made  out  (h).  So  where,  by  an 
ancient  composition,  a  rent  was  payable  in  lieu  of  tithes,  and  the  lands 
came  into  the  seisin  and  possession  of  divers  grantees,  the  composition 
would  be  apportioned  among  them  in  equity,  though  there  might  be  no 
redress  at  law  (i).  So,  where  money  is  to  be  laid  out  in  land,  if  the 
party  who  is  entitled  to  the  land  in  fee,  when  purchased,  dies  before 
it  is  purchased,  the  money  being  in  the  meantime  secured  on  a 
mortgage,  and  the  interest  made  payable  half-yearly,  the  interest  will 
be  apportioned  .in  equity  between  the  heir  and  the  administrator  of 
the  party  so  entitled,  if  he  dies  before  the  half-yearly  payment  is 
due  (fc).  So,  where  portions  are  payable  to  daughters  at  eighteen  or 
marriage,  and,  until  the  portions  are  due,  maintenance  is  to  be  allowed, 
payable  half-yearly  at  specific  times,  if  one  of  the  daughters  should 
come  of  age  in  an  intermediate  period,  the  maintenance  will  be 
apportioned  in  equity  (l). 

§  483.  But  a  far  more  important  and  beneficial  exercise  of  equity 
jurisdiction,  in  cases  of  apportionment  and  contribution,  is,  when 
incumbrances,  fines,  and  other  charges  on  real  estate  are  required  to 
be  paid  off,  or  are  actually  paid  ofP,  by  some  of  the  parties  in 
interest  (m).     This  subject  has  already  come  incidentally  under  our 

(/)  Post,  §  483  to  488.  (g)  Ante,  §  472. 

(/i)  Com.  Dig.  Chancery,  2  E.,  4  N.  9;  Jew  v.  Thirkenell,  1  Ch.  Cas.  31;  b.c.  3 
Ch.  Eep.  11. 

(i)  Com.  Dig.  Chancery,  4  N.  6,  cites  Saville,  5.  See  Ayvsley  v.  Woodsworth, 
2  Vea.  &  B.  331. 

(k)  Edwards  v.  Countess  of  Warwick,  2  P.  Will.  176. 

(!)  Hay  v.  Palmer,  2  P.  Will.  501.  See  also  now,  as  to  these,  the  Apportionment 
Act,  1870,  supra. 

(m)  Averall  v.  Wade,  LI.  &  G.  252. 


§  479 — 485.]         ACCOUNT — contribution — charges.  199 

notice  (n),  but  it  requires  a  more  ample  examination  in  this  place. 
In  most  cases  of  this  sort  there  is  no  remedy  at  law,  from  the  extreme 
uncertainty  of  ascertaining  the  relative  proportions  which  difEerent 
persons,  having  interests  of  a  very  different  nature,  quality,  and 
duration  in  the  subject-matter,  ought  to  pay.  And  when  there  is  a 
remedy,  it  is  inconvenient  and  imperfect,  because  it  involves 
multiplicity  of  suits,  and  opens  the  whole  matter  for  contestation 
anew  in  every  successive  litigation  (o). 

§  484.  The  subject  may  be  illustrated  by  one  of  the  most  common 
cases,  that  of  an  apportionment  and  contribution  towards  a  mortgage 
upon  an  estate  where  the  interest  is  required  to  be  kept  down  or  the 
incumbrance  to  be  paid.  Let  us  suppose  a  case  where  different  parcels 
of  land  or  other  property  are  included  in  the  same  mortgage,  and  these 
different  parcels  or  properties  are  aiterwards  aliened  to  different 
purchasers  or  donees,  each  holding  in  fee  and  severalty  the  parcel 
sold  or  conveyed  to  himself.  In  such  a  case  each  purchaser  or- 
donee  is  bound  to  contribute  to  the  discharge  of  the  common  burden 
or  charge  in  proportion  to  the  value  which  his  parcel  bears  to  the 
whole  included  in  the  mortgage  (p).  But  to  ascertain  the  relative 
values  of  each  is  a  matter  of  great  nicety  and  difficulty;  and  unless 
all  the  different  purchasers  could  be  joined  in  a  single  suit,  as  before 
the  Judicature  Act,  1873,  they  could  be  in  equity,  although  not  at  law, 
the  most  serious  embarrassments  might  arise  in  fixing  the  proportion 
of  each  purchaser,  and  in  making  it  conclusive  upon  all  others. 

§  485.  So,  if  there  are  different  persons  having  different  interests 
in  an  estate  under  mortgage,  as,  for  instance,  parceners,  tenants  for 
life  or  in  tail,  remaindermen,  tenants  in  dower  or  for  a  term  of  years, 
or  for  other  limited  interests,  it  is  obvious  that  the  question  of  appor- 
tionment and  contribution  in  redeeming  the  mortgage,  as  well  as  in 
payment  of  interest,  may  involve  the  most  important  and  intricate 
inquiries ;  and,  to  do  entire  justice,  it  may  be  indispensable  that  all 
the  parties  in  interest  should  actually  be  brought  before  the  court. 
Now,  in  a  suit  at  the  common  law,  this  was  absolutely  impossible; 
for  no  persons  could  be  made  parties  except  those  whose  interest  was 
joint  and  of  the  same  nature  and  character,  and  was  immediate  and 
vested  in  possession.  So  that  resort  to  a  court  of  equity,  where  all 
these  interests  can  be  brought  before  the  court  and  definitely  ascer- 
tained and  disposed  of,  is  indispensable.  If  to  this  we  add  that,  in 
most  cases  of  mortgage,  an  account  of  what  has  been  paid  upon  the 
mortgage,  either  by  direct  payments  or  by  perception  of  the  rents  and 
profits  of  the  estate,  is  necessary  to  be  taken,  we  shall  at  once  see 
that  the  machinery  of  a  court  of  common  law  was  very  ill  adapted  to 

in)  Ante,  §  477. 
(o)  Ante,  §  477,  478. 

(p)  Aldrich  v.  Cooper,  8  Ves.  382;  Johnson  v.  Child,  4  Hare,  87;  In  re  Athill; 
Athill  V.  Athill,  16  Ch.  D.  211 ;  In  re  Jones,  Farrington  v.  Forrester,  [1893]  2  Ch.  461. 


200  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

any  such  purpose.  But  if  we  add,  further,  to  all  this,  that  there  may 
be  mesne  incumbrances  (5)  and  other  cross  equities  between  some  of 
the  parties,  all  of  which  are  required  to  be  adjusted  in  order  to  arrive  at 
a  just  result,  aJid  to  attain  the  fuU  end  of  the  law  by  closing  up  all 
future  litigation,  we  shall  not  fail  to  be  convinced  that  the  only 
appropriate,  adequate,  and  effectual  remedy  must  be  administered  in 
equity.  Indeed,  from  its  very  nature,  as  we  shall  have  occasion  to 
see  fully  hereafter,  the  jurisdiction  over  mortgages  belongs  peculiarly 
and  exclusively  to  courts  of  equity. 

§  486.  Very  delicate,  and  often  very  intricate,  questions  arise  in 
the  adjustment  of  the  rights  and  duties  of  the  different  parties  in 
interest  in  the  inheritance.  In  the  first  place,  in  regard  to  the  paying 
off  of  incumbrances.  Where  a  tenant  in  fee  simple  pays  off  an 
incumbrance  the  presumption  is  that  there  is  a  merger,  and  a  transfer 
to  a  trustee  for  his  benefit  is  not  conclusive  evidence  that  he  desired 
to  keep  it  alive  (r).  If  a  tenant  in  tail  in  possession  pays  off  an 
incumbrance,  it  wiU  ordinarily  be  treated  as  extinguished ;  and  the 
remainderman  cannot  be  called  upon  for  contribution  unless  the  tenant 
in  tail  has  kept  alive  the  incumbrance,  or  preserved  the  benefit  of  it 
to  himself  by  some  suitable  assignment,  or  has  done  some  other  act 
or  thing  which  imports  a  positive  intention  to  hold  himself  out  as  a 
creditor  of  the  estate  in  lieu  of  the  mortgage.  The  reason  for  this 
doctrine  is,  that  a  tenant  in  tail  can,  if  he  pleases,  become  the  absolute 
owner  of  the  estate;  and,  therefore,  his  discharge  of  incumbrances 
is  treated  as  made  in  the  character  of  owner,  unless  he  clearly  shows 
that  he  intends  to  discharge  them  and  become  a  creditor  thereby  (s). 
But  the  like  doctrine  does  not  apply  to  a  tenant  in  tail  in  remainder, 
whose  estate  may  be  altogether  defeated  by  the  birth  of  issue  of 
another  person ;  for  it  must  be  inferred  that  such  a  tenant  in  tail, 
in  paying  off  an  incumbrance  without  an  assignment,  means  to  keep 
the  charge  alive  (t).  A  fortiori,  the  doctrine  will  not  apply  to  the 
case  of  a  tenant  in  tail  who  is  restrained  by  statute  from  barring 
his  estate  tail  or  to  the  case  of  a  tenant  for  life  paying  off  an  in- 
cumbrance ;  for,  if  he  should  pay  it  off  without  taking  an  assignment, 
he  would  be  deemed  to  be  a  creditor  to  the  amount  paid,  upon  the 
ground  that  there  can  be  no  presumption  that,  with  his  limited  interest, 
he  could  intend  to  exonerate  the  estate  (u).  He  cannot  be  presumed, 
prima  facie,  to  discharge  the  estate  from  the  debt,  for  that  would  be 
to  discharge  the  estate  of  another  person  fmm  the  debt.     But,  in  both 


(q)  Barnes  v.  Racster,  1  Y.  &  C.  Ch.  401 ;  Flint  v.  Howard,  [1893]  2  Ch.  54. 
(r)  Hood  V.  Phillips,  3  Beav.  513. 

(s)  Kirkham  v.  Smith,  1  Ves.  Sen.  258;  Jones  v.  Morgan,  1  Bro.  Ch.  C.  206. 
(t)  Wigsell  v.  Wigsell,  2  Sim.  &  Stu.  364;  Horton  v.  Smith,  S  K.  &  J.  624. 
(«)  Countess  of  Shrewsbury  v.  Earl  of  Shrewsbury ,  1  Ves.  Jun.  227;  Faulkner  v. 
Daniel,  3  Hare,  217 ;  In  re  Harvey;  Harvey  v.  Hobday,  1896,  1  Ch.  137. 


§  486 — 488.]         ACCOUNT — contribution — charges.  201 

cases,    the   presumption    may    be    rebutted    by    circumstances    which 
demonstrate  a  contrary  intention. 

§  487.  In  respect  to  the  discharge  of  incumbrances,  it  was  for- 
merly a  rule  in  equity,  that  the  tenant  for  life  and  the  reversioner,  or 
remainderman,  were  bound  to  contribute  towards  the  payment  of 
incumbrances,  in  a  positive  proportion,  fixed  by  the  court;  so  that 
they  paid  a  gross  sum,  in  proportion  to  their  interests  in  the  estate. 
The  usual  proportion  was,  for  the  tenant  for  life  to  pay  one-third, 
and  the  remainderman  or  reversioner  to  pay  two-thirds  of  the  charge. 
A  similar  rule  was  applied  to  cases  of  fines  paid  upon  the  renewal 
of  leases.  But  the  rule  is  now,  in  both  cases,  entirely  exploded; 
and  a  far  more  reasonable  rule  is  adopted.  It  is  this :  that  the 
tenant  shall  contribute  beyond  the  interest,  in  proportion  to  the 
benefit  he  derives  from  the  liquidation  of  the  debt,  and  the  con- 
sequent cessation  of  annual  payments  of  interest  during  his  life 
(which  of  course  will  depend  much  upon  his  age  and  the  computation 
of  the  value  of  his  life) ;  and  it  will  be  referred  to  a  master,  to 
ascertain  and  report  what  proportion  of  the  capital  sum  due  the 
tenant  for  life  ought,  upon  this  basis,  to  pay,  and  what  ought  to  be 
borne  by  the  remainderman  or  reversioner  {x).  If  the  estate  is  sold 
to  discharge  incumbrances  (as  the  incumbrancer  may  insist  that  it 
shall  be),  in  such  a  case,  the  surplus,  beyond  what  is  necessary  to 
discharge  the  incumbrances,  is  to  be  applied  as  follows :  the  income 
thereof  is  to  go  to  the  tenant  for  life,  during  his  life ;  and  then 
the  whole  capital  is  to  be  paid  over  to  the  remainderman  or  rever- 
sioner (j/). 

§  488.  In  regard  to  the  interest  due  upon  mortgages  and  other 
incumbrances,  the  question  often  arises  by  whom  and  in  what 
manner  it  is  to  be  paid.  And  here  the  general  rule  is,  that  a  tenant 
for  life  as  between  himself  and  the  remainderman  is  bound  to  keep 
down  and  pay  the  interest,  although  he  is  under  no  obligation  to  pay 
ofi  the  principal  {z).  But  a  tenant  in  tail  is  not  bound  to  keep  down 
the  interest;  and  if  he  does,  his  personal  representative  has  no  right  to 
be  allowed  the  sums  so  paid,  as  a  charge  on  the  estate  (a).  The  reason 
of  this  distinction  is,  that  a  tenant  in  tail,  discharging  the  interest,  is 
supposed  to  do  it,  as  owner,  for  the  benefit  of  the  estate.  He  is  not 
compellable  to  pay  the  interest;  because  he  has  the  power,  at  any 
time,  to  make  himself  absolute  owner  against  the  remainderman  and 

{x)  White  V.  White,  5  Ves.  24,  9  Ves.  554;  Allan  v.  Backhouse,  2  Ves.  &  B.  65. 

(J/)  Waring  v.  Coventry,  2  M.  &  K.  406;  Wrixon  v.  Vize,  2  Dm.  &  War.  192; 
Makings  v.  Makings,  1  De  G.  P.  &  J.  470.  See  Redington  v.  Redington,  1  Ball  &  B. 
131. 

(z)  Penrhyn  v.  Hughes,  5  Ves.  107 ;  White  v.  White,  4  Ves.  33;  Lloyd  y.  Johnes, 
9  Ves.  37.  Many  cases  may  occur  of  far  more  complicated  adjustments  than  are  here 
stated;  but  in  a  treatise  like  the  present,  little  more  than  the  general  rules  can  b?, 
indicated. 

(o)  Amesbury  v.  Brown,  1  Ves.  Sen.  480,  481. 


202  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

reversioner.  The  latter  have  no  equity  to  compel  him,  in  their  favour, 
to  keep  down  the  interest,  inasmuch,  as  if  they  take  anything,  it  is 
solely  by  his  forbearance,  and,  of  course,  they  must  take  it  cum 
onere  (b). 

§  489.  These  remarks  may  suffice  to  -show  (for  it  is  not  our  purpose 
to  bring  the  minute  distinctions  upon  these  important  subjects  under 
a  full  review  (c) )  the  beneficial  operations  of  courts  of  equity,  in  appor- 
tionments and  contributions,  upon  this  confessedly  intricate  subject; 
and,  also,  how  utterly  inadequate  a  court  of  common  law  would  be 
to  do  complete  justice,  in  a  vast  variety  of  cases,  which  may  easily  be 
suggested.  Without  some  proceedings,  in  the  nature  of  an  account 
before  a  master,  there  would  be  no  suitable  elements,  upon  which 
any  court  of  justice  could  dispose  of  the  merits  of  such  cases,  so  as  to 
suppress  future  litigation,  or  to  administer  to  the  conflicting  rights  of 
different  parties. 

§  490.  Another  class  of  cases,  which  still  more  fully  illustrates  the 
importance  and  value  of  this  branch  of  equity  jurisdiction,  is  that  of 
General  Average,  a  subject  of  daily  occurrence  in  maritime  and 
commercial  operations.  General  average,  in  the  sense  of  the  maritime 
law,  means  a  general  contribution,  that  is  to  be  made  by  all  parties 
in  interests,  towards  a  loss  or  expense,  which  is  voluntarily  sustained 
or  incurred  for  the  benefit  of  all  (d).  The  principle  upon  which  this 
contribution  is  founded,  is  not  the  result  of  contract,  but  has  its 
origin  in  the  plain  dictates  of  natural  law  (e).  It  has  been  more 
immediately  derived  to  us  from  the  positive  declarations  of  the  Roman 
law,  which  borrowed  it  from  the  more  ancient  text  of  the  Rhodian 
jurisprudence.  Thus,  the  Rhodian  law,  in  cases  of  jettison,  declared, 
that,  "  If  goods  are  thrown  overboard  in  order  to  lighten  a  ship,  the 
loss,  incurred  for  the  sake  of  all,  shall  be  made  good  by  the  contribu- 
tion of  all.  '  Lege  Rhodia  '  (says  the  Digest),  '  cavetur,  ut  si  levandse 
navis  gratia  jactus  mercium  factus  est,  omnium  contributione  sar- 
ciatur,  quod  pro  omnibus  datum  est  '  "  (/).  But  the  principle  is  by  no 
means  confined  to  cases  of  jettison;  but  it  is  applied  to  all  other 
sacrifices  of  property,  sums  paid,  and  expenses  voluntarily  incurred  in 
the  course  of  maritime  voyages  for  the  common  benefit  of  all  persons 

(b)  There  is  an  exception  to  the  general  rule,  that  a  tenant  in  tail  is  not  bound 
to  keep  down  the  interest,  which  confirms,  rather  than  impugns,  the  general  rule.  I£ 
the  tenant  in  tail  is  an  infant,  his  guardian  or  trustee  will,  in  that  case,  be  required  to 
keep  down  the  interest.  The  reason  is,  that  the  infant,  of  his  own  free  will,  cannot 
bar  the  remainder,  and  make  himself  absolute  owner.  Sergeson  v.  Sealey,  2  Atk. 
416,  and  Mr.  Saunders's  note  (1) ;  Surges  v.  Mawbey,  T.  &  R.  167. 

(c)  See  1  Bridgeman's  Digest,  Average  and  Contribution,  III.;  1  Chitty,  Eq.  Dig. 
Apportionment. 

id)  Abbott,  Shipping,  Pt.  3,  ch.  8,  §  1,  p.  342;  Moore,  297 ;  Vin.  Abr.  Contribution 
and  Average,  A.  pi.  1,  2,  26. 

(e)  Bering  v.  Earl  of  Winchelsea,  1  Cox  318,  323;  s.c.  2  Bos.  &  Pul.  270,  274; 
Stirling  v.  Forrester,  3  Bligh  590,  596. 

(/)  Dig.  Lib.  14,  tit.  2,  f.  1. 


§  489 491,]     ACCOUNT — contribution — AVERAGE.  203 

concerned  in  the  adventure.  The  principle  has,  indeed,  been  confined 
to  a  sacrifice  of  property,  and  the  contribution  confined  to  the  pro 
pert.y  saved  thereby,  although  it  certainly  might  have  gone  farther, 
and  have  required  a  corresponding  apportionment  of  the  loss  or 
sacrifice  of  property  upon  all  persons,  whose  lives  have  been  preserved 
thereby,  upon  the  same  common  sense  of  danger,  and  purchase  of 
safety,  alluded  to  by  Juvenal,  when,  in  a  similar  case,  his  friend 
desired  his  life  to  be  saved  by  a  sacrifice  of  his  property :  Fundite, 
quae  mea  sunt  etium  puVcherrima. 

§  491.  General  average  being,  then,  as  has  been  already  stated, 
not  confined  to  cases  of  jettison,  but  extending  to  other  losses  and 
expenditures  for  the  common  benefit,  it  may  readily  be  perceived 
how  difficult  it  would  be  for  a  court  of  law  to  apportion  and  adjust 
the  amount,  which  is  to  be  paid  by  each  distinct  interest,  which  is 
involved  in  the  common  calamity  and  expenditure.  Take,  for  instance, 
the  common  case  of  a  general  ship  or  packet,  trading  between  Liver- 
pool and  New  York,  and  having  on  board  various  shipments  of  goods, 
not  unfrequently  exceeding  a  hundred  in  number,  consigned  to 
different  persons,  as  owners  or  consignees;  and  suppose  a  case  of 
general  average  to  arise  during  the  voyage,  and  the  loss  or  expenditure 
to  be  apportioned  among  all  these  various  shippers  according  to  their 
respective  interests,  and  the  amount  which  the  whole  cargo  is  to 
contribute  to  the  reimbursement  thereof.  By  the  general  rule  of  the 
maritime  law,  in  all  cases  of  general  average,  the  ship,  the  freight  for 
the  voyage,  and  the  cargo  on  board,  are  to  contribute  to  such  re- 
imbursement, according  to  their  relative  values.  The  first  step  in 
the  process  of  general  average,  is  to  ascertain  the  amount  of  the  loss 
for  which  contribution  is  to  be  made,  as,  for  instance,  in  the  case 
of  jettison,  the  value  of  the  property  thrown  overboard,  or  sacrificed 
for  the  common  preservation.  The  value  is  generally  indefinite  and 
unascertained,  and,  from  its  very  nature,  rarely  admits  of  an  exact 
and  fixed  computation.  The  same  remark  applies  to  the  case  of 
ascertainment  of  the  value  of  the  contributory  interest,  the  ship,  the 
freight,  and  the  cargo.  These  are  generally  differently  estimated  by 
different  persons,  and  rarely  admit  of  a  positive  and  indisputable 
estimation  in  price  or  value.  Now,  as  the  owners  of  the  ship,  and 
the  freight,  and  the  cargo,  may  be,  and  generally  are,  in  the  supposed 
case,  different  persons,  having  a  separate  interest,  and  often  an  adverse 
interest  to  each  other,  it  is  obvious,  that  unless  all  the  persons  in 
interest  can  be  made  parties  in  one  common  •  suit,  so  as  to  have  the 
whole  adjustment  rriade  at  once,  and  made  binding  upon  all  of  them, 
infinite  embarrassments  must  arise,  in  ascertaining  and  apportioning 
the  general  average.  In  a  proceeding  at  the  common  law,  every  party, 
having  a  sole   and   distinct  interest,   had  formerly   to  be   separately 


204  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

sued  (g);  and  as  the  verdict  and  judgment  in  one  case  was  not  only 
not  conclusive,  but  not  even  admissible  evidence  in  another  suit,  as  it 
was  res  inter  alios  acta,;  and  as  the  amount  to  be  recovered  in  each 
case  depended  upon  the  value  of  all  the  interests  to  be  affected,  which, 
of  course,  might  be  differently  estimated  by  different  juries,  it  is 
manifest  that  the  grossest  injilstice,  or  the  most  oppressive  litigation, 
might  taJse  place  in  all  cases  of  general  average  on  board  of  general 
ships.  A  court  of  equity,  having  authority  to  bring  all  the  parties 
before  it,  and  to  refer  the  whole  matter  to  a  master,  to  take  an 
account,  and  to  adjust  the  whole  apportionment  at  once,  afforded  a 
safe,  convenient  and  expeditious  remedy.  And  it  was  accordingly  a 
mode  of  remedy  in  all  cases,  where  a  controversy  arose,  and  a  court 
of  equity  existed  in  the  place,  capable  of  administering  the  remedy  (K). 
But  claims  for  general  average  were  usually  determined  in  common 
law  courts.  The  court  of.  Admiralty  had  no  jurisdiction  to  entertain 
.an  active  claim  for  general  average  (?'),  but  the  Admiralty  Division, 
as  a  branch  of  the  High  Court,  has  acquired  full  jurisdiction  in  the 
matter  (fe),  and  one  which  is  frequently  exercised. 

§  492.  Another  class  of  cases,  to  illustrate  the  beneficial  effects  of 
■equity  jurisdiction  over  matters  of  account,  is  that  of  Contribution 
BETWEEN  Sureties,  who  are  bound  for  the  same  principal,  and  upon 
his  default,  one  of  them  is  compelled  to  pay  the  money,  or  to  perform 
any  other  obligation,  for  which  they  all  became  bound.  In  cases  of 
-this  sort,  the  surety  who  has  paid  more  than  his  proper  proportion, 
is  entitled  to  receive  contribution  from  all  the  others,  for  what  he  has 
■done  in  relieving  them  from  a  common  burden  {I).  The  common 
law  courts  also  allowed  a  surety  who  had  paid  more  than  his  aliquot 
■share  to  recover  from  a  co-surety  the  amount  of  the  excess  (m),  but 
the  aliquot  share  of  liability  was  fixed  at  the  csommon  law  by 
reference  to  the  number  of  sureties  originally  bound,  and  if  one 
of  the  sureties  became  insolvent,  a  surety  singled  out  by  the  creditor 
■as  a  defendant  might  find  his  liability  exceed  his  contemplated 
proportion  (n).  The  equitable  rule,  which  is  that  now  prevailing, 
ascertained  the  proportionate  liability  by  reference  to  the  solvent 
sureties  (o).  Eegard  must,  however,  be  had  to  the  contract  of  the 
parties.  Parties  who  have  become  bound  by  separate  instrument 
and  at  separate  dates,  may  nevertheless   be  co-sureties   (p);  on  the 

(g)  Abbott,  Shipping,  Pt.  3,  ch.  8,  §  17. 

{h)  Ibid. ;  Shepherd  v.  Wright,  Show.  Pari.  Cas.  18 ;  Hallett  v.  Bousefleld,  18 
■Vea.  190,  191. 

(i)  See  Cargo  ex  Galam,  2  Moo.  P.  C.  N.  S.  216. 

(k)  The  Oquendo,  38  L.  T.  151. 

(l)  Derivg  v.  Earl  of  Winchelsea,  1  Cox,  318. 

(■m)  Kemp  v.  Einden,  12  M.  &  "W.  421. 

in)  Browne  v.  Lee,  6  B.  &  G.  689. 

(o)  Hitchman  v.  Stewart,  3  Drew.  271;  Dallas  v.  Walls,  29  L.  T.  599. 

<p)  Dering  v.  Earl  of  Winchelsea,  1  Cox,  318;  Whiting  v.  Burke,  L.  E.  6  Ch.  342. 


§  492 — 494.]         ACCOUNT — contribution — sureties.  205 

other  hand,  each  surety  may  be  liable  only  for  a  distinct  portion 
of  the  debt  (5).  Where  the  obligation  is  based  upon  proportional 
liability,  each  surety  must  be  bound  as  a  condition  precedent  to  the 
liability  of  any  other  (r). 

§  493.  The  cla,im  certainly  has  its  foundation  in  the  clearest 
principles  of  natural  justice;  for,  as  all  are  equally  bound  and  are 
equally  relieved,  it  seems  but  just  that  in  such  a  case  all  should 
contribute  in  proportion  towards  a  benefit  obtained  by  all,  upon  the 
maxim,  Qui  sentit  commodum,  sentire  debet  et  onus.  And  the 
doctrine  has  an  equal  foundation  in  morals ;  since  no  one  ought  to  profit 
by  another  man's  loss  where  he  himself  has  incurred  a  like  respon- 
sibility. Any  other  rule  would  put  it  in  the  power  of  the  creditor  to 
select  his  own  victim ;  and,  upon  motives  of  mere  caprice  or  favouritism, 
to  make  a  common  burden  a  most  gross  personal  oppression.  It 
would  be  against  equity  for  the  creditor  to  exact  or  receive  payment 
from  -  one,  and  to  permit,  or  by  his  conduct  to  cause,  the  other 
debtors  to  be  exempt  from  payment.  And  the  creditor  is  always 
bound  in  conscience,  although  he  is  seldom  bound  by  contract,  as  far 
as  he  is  able,  to  put  the  party  paying  the  debt  upon  the  same  footing 
with  those  who  are  equally  bound.  It  can  be  no  matter  of  surprise, 
therefore,  to  find,  that  courts  of  equity,  at  a  very  early  period,  adopted 
and  acted  upon  this  salutary  doctrine,  as  equally  well  founded  in 
equity  and  morality.  The  ground  of  relief  does  not,  therefore,  stand 
upon  any  notion  of  mutual  contract,  express  or  implied,  between  the 
sureties  to  indemnify  each  other  in  proportion  (as  has  sometimes 
been  argued);  but  it  arises  from  principles  of  equity,  independent 
of  contract  (s). 

§  494.  In  the  Roman  law  analogous  principles  existed,  although, 
from  the  different  arrangements  of  that  system,  they  were  developed 
under  very  different  modifications.  By  that  law,  sureties  were  liable, 
indeed,  for  the  whole  debt  due  to  the  creditor,  but  this  liability 
was  subject  to  three  modifications.  In  the  first  place,  the  creditor  was 
generally  bound  to  proceed  by  process  of  discussion  (as  it  is  now 
called),  in  the  first  instance  against  the  principal  debtor,  to  obtain 
satisfaction  out  of  his  effect-s,  before  he  could  resort  to  the  sureties. 
In  the  next  place,  in  a  suit  against  one  surety,  although  each  surety 
was  bound  for  the  whole  debt  after  the  discussion  of  the  principal 
debtor;  yet  the  surety  in  such  suit  had  a  right  to  have  the  debt 
apportioned  among  all  the  solvent  sureties  on  the  same  obligation, 
so  that  he  should  be  compellable  to  pay  his  own  share  only;  and 

(q)  Coojie  V.  Twynam,  T.  &  E.  426;  Bolton  v.  Cooke,  3  L.  J.  0.  S.  Ch.  87;; 
Pendlebury  v.  Walker,  4  Y.  &  C.  Ex.  424. 

(r)  Ellesmere  Brewery  Co.  v.  Cooper,  [1896]  1  Q.  B.  75. 
(s)  Bering  v.  Earl  of  Winchelsea,  1  Cox  318. 


206  EQUITY   JURISPRUDENCE.  [CH.    VIII 

this  was  called  the  benefit  of  division  (<).  But  if  a  surety  should  pay 
the  whole  debt,  without  insisting  upon  the  benefit  of  division,  then 
he  had  no  right  to  recourse  over  against  his  co-sureties,  unless  (which 
is  the  third  case),  upon  the  payment,  he  procured  himself  to  be 
substituted  to  the  original  debt  (which  he  might  insist  on)  by  a 
cession  thereof  from  the  creditor;  in  which  case  he  might  insist  upon 
a  payment  of  a  proper  proportion  from  each  of  his  co-sureties  (m). 
And,  in  case  of  the  insolvency  of  either  of  the  sureties,  the  share 
of  the  insolvent  was  to  be  apportioned  upon  all  the  solvent  sureties, 
■pro  raid  (x).  The  same  principles  in  a  great  measure,  but  not  in  all 
cases,  now  regulate  the  same  subject  among  the  continental  nations 
of  Europe  whose  jurisprudence  is  derived  from  the  civil  law  (y). 

(t)  1  Domat,  B.  3,  tit.  4,  §  2,  art.  1,  6;  Pothier  on  Oblig.  by  Evans,  n.  407; 
Pothier,  Pand.  Lib.  46,  tit.  1,  §  5,  art.  1,  nn.  41  to  45;  ibid.  art.  3,  nn.  51  to  61. 

(u)  1  Domat,  B.  3,  tit.  4,  §  4,  art.  1;  Pothier  on  Oblig.  by  Evans,  nn.  407,  519, 
520,  521  (556,  567,  558,  of  the  French  editions);  Pothier,  Pand.  Lib.  56,  tit.  1,  art.  2, 
nn.  45  to  51. 

(x)  1  Domat,  B.  3,  tit.  4,  art.  2;  Pothier  on  Oblig.  by  Evans,  nn.  407,  415,  418, 
419,  420,  421,  445,  518,  519,  520,  521  (555  to  569  of  French  editions) ;  ibid.  282 ;  Pothier, 
Pand.  Lib.  46,  tit.  1,  art.  2,  nn.  46  to  51;  Dig.  Lib.  46,  tit.  1,  f.  26;  Cod.  Lib.  8, 
tit.  1,  f.  26 ;  Cod.  Lib.  8,  tit.  14,  f.  2.  See  also  1  Bell,  Comm.  B.  3,  Pt.  1,  ch.  3,  §  3, 
arts.  283  to  286;  Ersk.  Inst.  B.  3,  tit.  3,  arts.  61  to  74;  1  Domat,  B.  3,  tit.  1,  §  3, 
art.  6,  and  Domat's  note;  post,  §  636. 

(y)  Merlin,  B6pert.  art.  Disctission ;  id.  Division;  Pothier  on  Oblig.  by  Evans,  Pt. 
2,  ch.  6,  art.  2,  nn.  407,  415,  416;  id.  Pt.  2,  ch.  3,  art.  8,  n.  280;  id.  Pt.  3,  ch.  1,  art.  6, 
§  2,  nn.  619  to  524  (556  to  559  of  the  French  editions) ;  1  Domat,  B.  3,  tit.  1,  §  3, 
art.  6,  and  Domat's  note,  ibid. ;  Cod.  Lib.  8,  tit.  14,  f.  2.  The  same  principle,  ."n 
regard  to  the  necessity  of  the  creditors  discussing  the  principal  debtor  before  resorting 
to  the  surety,  has  been  adopted  in  most  countries  deriving  their  jurisprudence  from  the 
civil  law ;  but  it  is  not  universally  adopted.  It  prevails  in  France,  Holland,  and 
Scotland;  but  not  (as  it  seems)  generally  in  Germany.  See  Mr.  Chancellor  Kent's 
learned  opinion  in  Hayes  v.  Ward,  4  Johns,  Ch.  130  to  136,  where  he  cites  the  foreign 
authorities  on  this  point.  These  authorities  fully  justify  his  statement.  The  following 
extract  from  that  opinion  may  be  acceptable  : — "  According  to  the  Roman  law,  in  use 
before  the  time  of  Justinian,  the  creditor,  as  with  us,  could  apply  to  the  surety,  before 
applying  to  the  principal.  Jure  nostro  est  potestas  creditor!,  relicto  reo,  eligendi  fide- 
jusBores  (Cod.  Lib.  8,  tit.  41,  §  6) ;  and  the  same  law  was  declared  in  another  imperial 
ordinance  (Cod.  Lib.  8,  tit.  41,  §  19).  But  Justinian,  in  one  of  his  ^^ovels  (Nov.  ch.  1, 
entitled  tit  Creditores  primo  loco  conveniant  Principalem) ,  allowed  to  sureties  the 
exception  of  discussion,  or  beneficium  ordinis,  by  which  they  could  require  that,  before 
they  were  sued,  the  principal  debtor  should,  at  their  expense,  be  prosecuted  to  judgment 
and  execution.  It  is  a  dilatory  exception,  and  puts  off  the  action  of  the  creditor  against 
the  surety,  until  the  remedy  against  the  principal  debtor  has  been  sufficiently  ex- 
hausted. This  provision  in  the  Novels  has  not  been  followed  in  the  states  and  cities  of 
Germany,  except  in  Pomerania  (Heinecc.  Elem.  Jur.  Germ.  Lib.  2,  tit.  146,  §  449, 
460,  451,  465) ;  but  it  has  been  adopted  in  those  other  countries  in  Europe,  as  France, 
Holland,  Scotland,  &c.,  which  follow  the  rules  of  the  civil  law  (Pothier,  Traits  des 
Oblig.  No.  407  to  414;  Code  Napol&n,  No.  2021  to  2023;  Voet,  Com.  ad  Pand.  tit. 
De  Fidejussoribus,  46,  1,  14  to  20;  Hub.  Prselec.  Lib.  3,  tit.  21,  §  6;  Ersk.  Inst.  504, 
§  61).  A  rule  of  such  general  adoption  shows  that  there  is  nothing  in  it  inconsistent 
with  the  relative  rights  and  duties  of  principal  and  surety,  and  that  it  accords  with  a 
common  sense  of  justice,  and  the  natural  equity  of  mankind."  It  may  be  well  here  to 
state  that  I  generally  cite  Pothier  on  Obligations  from  Mr.  Evans's  edition.  It  is 
important  to  remark  that  after  n.  456,  in  Evans's  edition,  the  subsequent  numbers 
differ  from  the  common  French  editions,  owing  to  Pothier  having  in  his  later  editions 
inserted   between   that   number   and   No.    457    a   new   section  containing   thirty-five 


§:  494a — 498.]         account — contribution — sureties.  207 

§  494a.  In  equity  a  surety  is  not  entitled  to  contribution  from 
his  co-surety  until  he  has  paid  more  than  his  just  proportion  of  the 
debt  (a).  If  there  is  a  judicial  adjudication  against  one  of  several 
sureties  ascertaining  his  liability  at  a  definite  sum,  he  may  have  a 
judgment  declaring  his  right  to  contribution  from  co-sureties,  and 
ordering  an  indemnity,  but  short  of  this  he  has  no  right  of  action  (a). 

§  497.  If  one  of  the  sureties  died,  the  remedy  at  lavs'  was  only 
against  the  surviving  parties;  vs^hereas,  in  equity,  it  might  be  enforced 
against  the  representative  of  the  deceased  party,  and  he  would  be 
compelled  to  contribute  his  share  to  a  surviving  surety,  who  had  paid 
the  whole  debt  (b).  This  latter  rule  now  prevails  in  England  by 
force  of  the  Judicature  Act,  1873  (36  &  37  Vict.  c.  66),  s.  25,  sub-s.  11. 

§  498.  These  are  cases  of  contribution  of  a  simple  and  distinct 
character.  But,  in  cases  of  suretyship,  others  of  a  very  complicated 
nature  may  arise,  from  counter  equities  between  some  or  all  of  the 
parties,  resulting  from  contract,  or  from  equities  between  themselves, 
or  from  peculiar  transactions  regarding  third  persons.  Thus,  as  already 
noticed,  although  the  general  rule  is,  that  there  shall  be  a  contribu- 
tion between  sureties,  by  the  rule  of  equity,  that  may  be  modified  by 
express  contract  between  them;  and,  in  such  a  case,  courts  of  equity 
will  be  governed  by  the  terms  of  such  contract,  in  giving  or  refusing 
contribution.  In  like  manner,  there  may  arise  by  implication,  from 
the  very  nature  of  the  transaction,  an  exemption  of  one  surety  from 
becoming  liable  to  contribution  in  favour  of  another.  Thus,  if  different 
sureties  should  be  bound  by  different  instruments,  for  equal  portions 
of  the  debt  of  the  same  principal,  and  it  clearly  appeared  that  the 
suretyship  of  each  was  a  separate  and  distinct  transaction,  there 
would  be  no  right  of  contribution  of  one  against  the  other  (c).  So,  if 
there  should  be  separate  bonds,  given  with  different  sureties,  and  one 
bond  is  intended  to  be  subsidiary  to,  and  a  security  for,  the  other, 
in  case  of  a  default  in  payment  of  the  latter,  and  not  to  be  a  primary 
concurrent  security;  in  such  a  case,  the  sureties  in  the  second  bond 
would  not  be  compellable  to  aid  those  in  the  first  bond  by  any 
contribution  (d). 

numbers,  so  that  No.  457  in  Evans's  edition  stands  in  the  common  editions  of  Pothier, 
No.  493.  See  Mr.  Evans's  note  (o)  to  Pothier  on  Oblig.  Pt.  2,  ch.  6,  §  9,  p.  306. 
This  explanation  may  be  useful  to  the  reader  to  prevent  mistakes,  or  supposed  mistakes, 
in  the  references  usually  made  in  English  and  American  works  to  Pothier.  Post, 
§§  635  to  640. 

{z)  Ex  parte  Snowdon,  In  re  Snowdon,  17  Ch.  D.  44;  Stirling  v.  Burdett,  [1911] 
2  Ch.  418. 

(o)  Hughes  Hallett  v.  Indian  Mammoth  Gold  Mines  Co.,  22  Ch.  D.  561 ;  Wolmers- 
hausen  v.  Gullick,  [1893]  2  Ch.  614. 

.  (b)  Primrose  v.  Bromley,  1  Atk.  89;  In  re  Ennis ;  Coles  v.  Peyton,  [1893]  3  Ch. 
238. 

(c)  Coope  v.  Twynam,  1  T.  &  Euss.  426.  It  would  be  different,  if  it  should 
appear  that  it  was  the  same  transaction  split  into  different  parts  by  the  agreement  of 
all  the  parties. 

(d)  Craythome  v.  Swinburne,  14  Ves.  159 ;  Bolton  v.  Cooke,  3  L.  J.  0.  S.  Ch.  87. 


208  EQUITY   JURISPRUDENCK.  [CH.    VIII. 

§  498a.  A  question  of  another  kind  has  arisen :  How  far,  and  under 
what  circumstances,  the  discharge  of  one  surety  by  the  creditor  would 
operate  as  a  discharge  of  the  other  sureties  from  their  hability.  It 
seems  now  to  be  clearly  established  that  a  release  or  discharge  of  one 
surety  by  the  creditor  will  operate  as  a  discharge  of  all  the  other 
sureties,  if  their  right  to  contribution,  or  other  contractual  right  be 
affected  thereby,  but  not  farther  or  otherwise  (e).  And  where  a  surety 
guarantees  the  performance  of  two  or  more  distinct  acts,  it  would  seem 
that  he  might  be  discharged  by  the  conduct  of  the  obligee  as  to  one 
or  more  and  remain  bound  as  to  the  other  (/).  The  efiEect  of  altering 
the  creditor's  rights  operating  in  discharge  of  the  surety  is  discussed 
elsewhere  (g). 

§  499.  Sureties  axe  not  only  entitled  to  contribution  from  each 
other  for  moneys  paid  in  discharge  of  their  joint  liabilities  for  the 
principal;  but  they  are  also  entitled  to  the  benefit  of  all  securities, 
which  have  been  taken  by  any  one  of  them  to  indemnify  himself 
against  such  liabilities  (h).  And  this  is  so  although  the  surety  who  has 
obtained  a  counter  security  only  consented  to  be  a  surety  upon  the 
terms  of  having  the  security  given  him,  and  although  his  co-sureties 
were,  when  they  entered  into  the  contract  of  suretyship,  ignorant  of 
his  agreement  to  receive  security.  For  the  result  of  the  leading  ease 
of  Bering  v.  Earl  of  Winchelsea  (i)  is  that,  as  between  co-sureties, 
there  is  to  be  equality  of  the  burden  and  of  the  benefit,  and  therefore 
whatever  benefit  one  surety  has  received  from  the  principal  debtor, 
he  is  bound  as  between  himself  and  his  co-sureties  to  bring  that  into 
hotch-pot,  in  order  that  it  may  be  ascertained  what  is  the  ultimate 
burden  which  the  co-sureties  have  to  bear,  so  that  that  ultimate 
burden  may  be  distributed  between  them,  equally  or  proportionably 
as  the  case  may  require.  Courts  of  equity  have  gone  farther  in 
their  favour,  and  held  them  entitled,  upon  payment  of  the  debt  due 
by  their  principal  to  the  creditor,  to  have  the  full  benefit  of  all  the 
collateral  securities,  both  of  a  legal  and  equitable  nature,  which  the 
creditor  has  taken  as  an  additional  pledge  for  his  debt  (fe).  Thus,  for 
example,  if,  at  the  time  when  the  bond  of  the  principal  and  surety  is 
given,  a  mortgage  also  is  made  by  the  principal  to  the  creditqr,  as  an 
additional  security  for  the  debt;  there,  if  the  surety  pays  the  debt, 
he  will  be  entitled  to  have  an  assignment  of  that  mortgage,   and  to 

(e)  Nicholson  v.  Revell,  4  A.  &  E.  675;  Evans  v.  Bumridge,  2  K.  &  J.  174;  on 
appeal  8  De  G.  M.  &  G.  100;  Ward  v.  National  Bk.  of  New  Zealand,  8  App.  Cas.  755. 

(/)  Harrison  v.  Seymour,  L.  E.  1  C.  P.  518. 

(g)  Ante,  §  326. 

(h)  Steel  v.  Dixon,  17  Ch.  D.  825;  In  re  Arcedeokne ;  Atkins  v.  Arcedeckne,  24 
Ch.  D.  709 ;  Berridge  v.  Berridge,  44  Ch.  D.  168. 

(i)  1  Cox  318. 

(7c)  Lake  v.  Brutton,  8  De  G.  M.  &  G.  440;  Pearl  v.  Deacon,  24  Beav.  186;  1 
De  G.  &  J.  461;  Aylwin  v.  Withy,  30  L.  J.  Ch.  860;  Duncan,  Fox  d  Co.  v.  N.  and  S. 
Wales  Bk.,  6  App.  Cas.  1. 


§    499.]  ACCOUNT — CONTRIBUTION — SURETIES.  209 

stand  in  the  place  of  the  mortgagee  (I).  And  the  same  rule  applies  to 
all  securities  taken  by  the  creditor  subsequent  to  the  surety  becoming 
bound  (jw).  And,  as  the  mortgagor  cannot  get  back  his  estate  again 
without  a  reconveyance,  that  assignment  and  security  will  remain 
a  valid  and  effectual  security  in  favour  of  the  surety,  notwithstanding 
the  bond  is  paid.  This,  indeed,  is  but  an  illustration  of  a  much 
broader  doctrine  established  by  courts  of  equity,  which  is,  that  a 
creditor  shall  not,  by  his  own  election  of  the  fund,  out  of  which  he 
wiU  receive  payment,  prejudice  the  rights  which  other  persons  are 
entitled  to;  but  they  shall  either  be  substituted  to  his  rights,  or  they 
may  compel  him  to  seek  satisfaction  out  of  the  fund,  to  which  they 
cannot  resort.  It  is  often  exemplified  in  cases  where  a  party,  having 
two  funds  to  resort  to  for  payment  of  his  debt,  elects  to  proceed 
against  one,  and  thereby  disappoints  another  party,  who  can  resort  to 
that  fund  only.  In  such  a  case,  the  disappointed  party  is  substituted 
in  the  place  of  the  electing  creditor,  or  the  latter  is  compelled  to 
resort,  in  the  first  instance,  to  that  fund  which  will  not  interfere 
with  the  rights  of  the  other  (n).  The  liability  of  the  surety 
to  the  creditor  was  only  secondary  to  that  of  the  principal 
debtor  in  the  eyes  of  the  court  of  equity,  and  the  surety  was 
entitled  to  insist  that  the  creditor  should  pursue  his  remedies 
against  the  debtor,  or  failing  that  that  the  surety  should  be  authorized 
to  institute  proceedings  in  the -name  of  the  creditor  who  was  entitled 
to  be  indemnified  against  the  costs  (o).  Accordingly  if  the  principal 
debtor  went  bankrupt,  the  surety  was  entitled  to  share  in  the  dividend 
proportionately  to  the  amount  of  the  debt  which  he  had  guaranteed, 
and  which  he  was  called  upon  to  pay  (p).  In  considering  the  right 
of  a  surety,  regard  must  be  had  to  the  transaction.  A  surety  is  not 
entitled  to  the  benefit  of  a  security  given  except  in  respect  of  that 
part  of  a  debt  of  which  he  has  guaranteed  the  payment  (q).  It 
must  also  be  borne  in  mind  that  a  party  may  constitute  himself  a 
principal  debtor  by  assuming  the  debt  of  a  third  person  (r).  There 
only  remains  to  be  noticed  the  fact  that  the  principal  creditor  possesses 
no  similar  right  against  securities  exacted  by  the  surety  (s). 

il)  Gedye  v.  Matson,  25  Beav.  310. 

(m)  Pearl  v.  Deacon,  24  Beav.  186;  1  De  G-.  &  J.  461;  Campbell  v.  Rothwell,  47 
L.  J.  C.  P.  144 ;  Forbes  v.  Jackson,  19  Ch.  D.  615. 

(n)  Aldrich  v.  Cooper,  8  Ves.  382;  Trimmer  v.  Bayne,  9  Ves.  209;  Hotham  v. 
Stone,  T.  &  E.  227n. 

(o)  Wooldridge  v.  Norris,  li.  E.  6  Eq.  410;  Aschuson  v.  Tredegar  Dry  Dock  and 
Wharf  Co.  [1908]  2  Ch.  401. 

(p)  Hobson  V.  Bass,  L.  K.  6  Ch.  792;  Gray  v.  Seckham,  L.  E.  7  Ch.  680;  Ellis 
V.  Emmanuel,  1  Ex.  D.  157;  Ex  parte  National  Provincial  Bk.,  In  re  Rees,  17  Ch. 
D.  98. 

(g)  Wade  v.  Coope,  2  Sim.  155. 

(r)  Reade  v.  Lowndes,  23  Beav.  361;  Wooldridge  v.  Norris,  L.  E.  6  Bq.  410; 
Nicholas  V.  Ridley,  [1904]  1  Ch.  192. 

(s)  In  re  Walker;  Sheffield  Bkg.  Go.  v.  Clayton,  [1892]  1  Ch.  621. 

E.J.  14 


210  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

§  499a.  The  principle  seems  in  former  times  to  have  been  carried 
farther  by  courts  of  equity,  and  to  have  authorized  the  surety  to 
insist  upon  an  assignment,  not  merely  of  collateral  securities,  properly 
speaking,  but  of  collateral  incidents  and  dependent  rights  growing 
out  of  the  original  debt.  Thus,  where  the  principal  in  a  bond  had 
been  sued  and  gave  bail,  and  judgment  was  obtained  against  the 
principal,  and  also  against  the  bail,  by  the  creditor,  and  afterwards 
the  sureties  on  the  original  bonds  (who  had  counter-bonds)  were  com- 
pelled to  pay  it,  and  then  brought  their  bill  in  equity  to  have  the 
benefit  of  the  judgment  of  the  creditor  against  the  bail  by  having  it 
assigned  to  them;  it  was  decreed  by  the  court  accordingly.  So  that 
although  the  bail  were  themselves  but  sureties  as  between  themselves 
and  the  principal  debtor,  yet,  coming  in  the  room  of  the  principal 
debtor,  as  to  the  creditor,  it  was  held,  that  they  likewise  came  in  the 
room  of  the  principal  debtor  as  to  the  sureties  on  the  original  bond  (f). 
This  decision  consequently  established  that  the  original  sureties  had 
precisely  the  same  rights  that  the  creditor  had,  and  were  to  stand  in 
his  place.  The  original  sureties  had  no  direct  contract  or  engage- 
ment by  which  the  bail  were  bound  to  them,  but  only  a  claim 
against  the  bail  through  the  medium  of  the  creditor,  to  all  whose 
rights,  and  the  power  of  enforcing  them,  they  were  held  to  be 
entitled.  This  decision  has  been  questioned;  and  although  it  may 
be  distinguishable  in  its  circumstances  from  others  on  which  we 
shall  have  occasion  to  comment,  yet  it  must  now  be  deemed  to  be 
much  shaken  in  point  of  authority.  But,  however  this  may  be,  it 
seems  certain  that  a  surety  upon  a  second  bond,  given  as  collateral 
security  for  the  original  bond,  has  a  right,  upon  payment  of  his  own 
bond,  to  be  substituted  to  the  original  creditor  as  ta  the  first  bond, 
and  to  iiave  an  assignment  thereof  as  an  independent  subsisting 
obligation  for  the  debt  (m). 

§  4995.  Another  point  of  more  extensive  importance  in  practice 
was  whether  a  surety  who  paid  off  the  debt  of  the  principal,  for  which 
he  was  bound,  could  require  the  creditor,  upon  such  payment,  to 
make  an  assignment  to  him  of  the  debt  and  of  the  instrument  by 
which  it  was  evidenced.  It  was  decided  in  Copis  v.  Middleton  (x)  that 
the  surety  had  no  such  right.  The  ground  of  that  decision  was  that  by 
the  payment  of  the  debt  the  title  derived  under  the  instrument  had 
become  extinguished  and  functus  officio;  and,  therefore,  an  assign- 
ment thereof  would  be  utterly  useless;  and  if  the  surety  should  after- 
wards sue  for  the  debt  at  law  in  the  name  of  the  creditor,  the 
principal  might  plead  such  payment  in  bar  of  the  action.  And  in 
such  a  case  it  was  held  to  make  no  difference  in  the  right  of  the  surety 
to  sue,  that,  upon  payment  of  the  debt,  he  had  procured  an  assign- 

(t)  Wright  V.  Morley,  11  Ves.  22. 

(u)  Hodgson  V.  Shaw,  3  Myl.  &  K.  183.  (x)  1  T.  &  Euss.  224. 


§  499  a — 500.  J     account — contribution — sureties.  211 

ment  thereof  to  be  made  to  a  third  person,  instead  of  to  himself, 
for  his  benefit.  A  judgment  would  of  course  stand  upon  the  same 
footing. 

§  499c.  But  the  law  in  this  respect  was  altered  by  the  Mercantile 
Law  Amendment  Act,  1856  (19  &  20  Vict.  c.  97),  s.  5,  which  enacts 
that  "  Every  person  who,  being  surety  for  the  debt  or  duty  of  another, 
or  being  liable  with  another  for  any  debt  or  duty,  shall  pay  such  debt 
or  perform  such  duty,  shall  be  entitled  to  have  assigned  to  him,  or  to 
a  trustee  for  him,  every  judgment,  speciality,  or  other  security  which 
shall  be  held  by  the  creditor  in  respect  of  such  debt  or  duty,  whether 
such  judgment,  speciality,  or  other  security  shall  or  shall  not  be 
deemed  at  law  to  have  been  satisfied  by  the  payment  of  the  debt  or 
performance  of  the  duty.  And  such  person  shall  be  entitled  to  stand 
in  the  place  of  the  creditor,  and  to  use  all  the  remedies,  and,  if  need 
be,  and  upon  a  proper  indemnity,  to  use  the  name  of  the  creditor  in 
any  action  or  other  proceeding  at  law  or  equity,  in  order  to  obtain 
from  the  principal  debtor  or  any  co-surety,  co-contractor,  or  co- 
debtor,  as  the  case  may  be,  indemnification  for  the  advances  made, 
and  loss  sustained  by  the  person  who  shall  have  so  paid  such  debt 
or  performed  such  duty ;  and  such  payment  or  performance  so  made 
by  such  surety  shall  not  be  pleadable  in  bar  of  any  such  action  or  other 
proceeding  by  him :  Provided  always  that  no  co-surety,  co-contractor, 
or  co-debtor,  shall  be  entitled  to  recover  from  any  other  co-surety, 
co-contractor,  or  co-debtor,  by  the  means  aforesaid,  more  than  a  just 
proportion  to  which,  as  between  those  parties  themselves,  such  last- 
mentioned  person  shall  be  justly  liable." 

§  500.  Upon  this  subject  the  doctrines  of  the  Eoman  law  are  as 
follows.  Not  only  is  the  surety  by  that  law  entitled  in  such  cases  to 
the  benefit  of  all  the  collateral  securities  taken  by  the  creditor;  but 
he  is  also  entitled  to  be  substituted  as  to  the  very  debt  itself,  to  the 
creditor,  by  way  of  cession  or  assignment.  And  upon  such  cession  or 
assignment  upon  payment  of  the  debt  by  the  surety,  the  debt*  is  in 
favour  of  the  surety,  treated  not  so  much  as  paid,  as  sold;  not  as 
extinguished,  but  as  transferred  with  all  its  original  obligatory  force 
against  the  principal.  "  Fidejussoribus  succurri  solet,  ut  stipulator 
compellatur  ei,  qui  solidum  solvere  paratus  est,  vendere  cseterorum 
nomina.  Cum  is,  qui  et  reum  et  fidejussores  habens,  ab  uno  ex  fide- 
jussoribus accepta  pecunia,  praestat  actiones;  poterit  quidem  dici, 
nuUas  jam  esse,  cum  suum  perceperit,  et  peroeptione  omnes  liberati 
sunt.  Sed  non  ita  est;  non  enim  in  solutum  accepit,  sed  quodam- 
modo  nomen  debitoris  vendidit.  Et  ideo  habet  actiones,  quia  tenetur 
ad  id  ipsutn,  ut  praestet  actiones  "  (y).  Here  we  have  the  doctrine  dis- 
tinctly put,  the  objection  to  it  stated,  and  the  ground  upon  which 
its    solution    depends    affirmed.      The    reasoning    may    seem    a    little 

(y)  Dig.  Lib.  46,  tit.  1,  ff.  17,  36. 


212  EQUITY   JURISPKUDENCB.  [CH.    VIII. 

artificial;  but  it  has  a  deep  foundation  in  natural  justice.  The  same 
doctrine  stands  in  substance  approved  in  all  the  countries  which 
derive   their  jurisprudence  from  the  civil  law    (s). 

§  501.  The  Eoman  law  carried  its  doctrines  yet  farther,  in  further- 
ance of  the  great  principles  of  equity.  It  held  the  creditor  bound 
not  to  deprive  himself  of  the  power  to  cede  his  rights  and  securities 
to  the  surety,  who  should  pay  him  the  debt;  and,  if  by  any  voluntary 
and  unnecessary  act  of  his  own,  such  a  cession  became  impracticable, 
the  surety  might,  by  what  was  technically  called  exceptio  ceden- 
darum  actionum,  bar  the  creditor  of  so  much  of  his  demand  as  the 
surety  might  have  received  by  a  cession  or  assignment  of  his  liens 
and  rights  of  action  against  the  principal  debtor.  "  Si  creditor  a 
debitore  culpa  sua  causa  ceciderit,  propfe  est,  ut  actione  mandati 
nihil  a  mandatore  consequi  debeat;  cum  ipsius  vitio  acciderit,  ne 
mandatori  possit  actionibus  cedere  "  (a).  But  this  qualification  should 
be  added,  that  a  mere  omission  by  the  creditor  to  collect  the  debt 
due  of  the  hypothecated  property,  so  that  it  is  lost  by  his  laches,  will 
not  discharge  the  sureties;  but  the  creditor  must  be  guilty  of  some 
wrongful  act,  as  by  a  release  on  fraudulent  surrender  of  the  pledge, 
in  order  to  discharge  the  surety  (&). 

§  502.  The  same  doctrine  has  been  in  some  measure  transfused 
into  the  English  law  in  an  analogous  form,  not  indeed  by  requiring 
an  assignment  or  cession  of  the  debt  to  be  made ;  but  by  putting 
the  surety  paying  the  debt,  under  some  circumstances,  in  the  place 
of  the  creditor  (c).  And  if  the  creditor  should  knowingly  have  done 
any  act  to  deprive  the  surety  of  this  benefit,  the  surety,  as  against 
him,  would  be  entitled  to  the  same  equity  as  if  the  act  had  not 
been  done  (d). 

§  502a.  A  surety,  who  executes  a  bond  on  the  faith  of  it  being 
executed  by  the  principal  debtor  also,  cannot  be  released  from  his 
obligation  on  the  ground  that  the  principal  has  never  executed  it, 
provided  the  principal  has  executed  an  instrument  on  which  the 
surety  may  sue  him  and  become  a  speciality  creditor  of  his  (e).  On  the 
other  hand,  where  a  surety  executed  a  guarantee  which  he  altered 
in  a  material  particular  and  thereby  released  other  parties  who  had 
executed  as  sureties,  he  was  held  to  be  himself  released  from  all 
liability,  his  right  of  proportional  contribution  being  lost  (/). 

(z)  Voet  ad  Pand.  Lib.  46,  tit.  1,  §  27 ;  Pothier  on  Obhg.  by  Evans,  n.  275. 
(o)  Dig.  Lib.  46,  tit.  2,  f.  95,  §  11;  Pothier,  Pand.  Lib.  46,  tit.  1,  n.  46,  47. 

(b)  Macdonald  v.  Bell,  3  Moo.  P.  C.  815,  332. 

(c)  Robinson  v.  Wilson,  2  Mad.  437.  In  the  case  of  a  Crown  debtor,  a  surety  is 
substituted  to  the  prerogative  of  the  Crown,  in  regard  to  the  debt,  and  then  is  admitted 
to  use  the  Crown  remedies.  The  King  v.  Bennett,  Wightw.  2  to  6 ;  ante,  §  499  to 
499c,  and  notes. 

(d)  Alrich  v.  Cooper,  8  Vea.  388,  391,  395;  Ex  parte  Rush  forth,  10  Vea.  409; 
Wright  v.  Morley,  H  Ves.  22. 

(e)  Cooper  v.  Evans,  L.  B.  4  Eq.  45. 

(/)  Ellesmere  Brewery  Co.  v.  Cooper,  [1896]  1  Q.  B.  75. 


§  501 — 505.].     ACCOUNT — CONTRIBUTION — SUEETIKS.  213 

§  503.  There  are  many  other  cases  of  contribution,  in  which  the 
jurisdiction  of  courts  of  equity  is  required  to  be  exercised,  in  order  to 
accomplish  the  purposes  of  justice.  Thus,  for  instance,  in  cases  of  a 
deficiency  of  assets  to  pay  all  debts  and  legacies,  if  any  of  the  legatees 
have  been  paid  more  than  their  proportion,  before  all  the  debts  are 
ascertained,  they  may  be  compelled  to  refund  and  contribute,  in 
favour  of  the  unpaid  debts,  at  the  instance  of  creditors,  at  the  instance 
of  other  legatees,  and  where  the  personal  representative  had  no  notice 
of  the  existence  of  the  debt,  at  the  instance  of  the  executor  himself  (g). 
A  liability  to  pay  uncalled  capital  in  the  event  of  its  being  subsequently 
called  up,  is  not  a  debt,  and  if  the  personal  representative  distributes 
the  estate  without  making  a  provision  for  its  discharge,  there  is  no 
voluntary  payment,  and  he  may  obtain  a  refund  (h).  This  principle 
is  applicable  to  all  contingent  liabilities,  at  any  rate  if  remote  (i). 

§  504.  In  like  manner,  contribution  lies  between  partners  for  any 
excess,  which  has  been  paid  by  one  partner  beyond  his  share,  against 
the  other  partners,  if  upon  a  winding  up  of  the  partnership  affairs 
such  a  balance  appears  in  his  favour;  or  if,  upon  a  dissolution,  he 
has  been  compelled  to  pay  any  sum,  for  which  he  ought  to  be 
indemnified.  The  cases  in  which  a  recovery  could  be  had  at  law  by 
way  of  contribution  between  partners  were  very  few,  and  stood  upon 
special  circumstances.  The  usual,  and  indeed  almost  the  only, 
effectual  remedy,  was  in  equity,  where  an  account  of  all  the  partner- 
ship transactions  could  be  taken ;  and  the  remedy  to  ascertain  and 
adjust  the  balance  was,  in  a  just  sense,  plain,  adequate,  and 
complete  (k).  It  is  under  the  same  circumstances  that  an  action  of 
account  at  the  common  law  lies;  but  that,  as  we  have  already  seen, 
is  in  most  cases  a  very  cumbersome,  inconvenient,  and  tardy  remedy. 
The  same  remark  applies  to  actions  on  sealed  or  on  unsealed  articles 
of  partnership,  where  there  have  been  any  breaches  of  the  articles; 
for  there  may  be  many  breachs  of  them,  during  the  continuance  of  the 
partnership,  which  scarcely  admit  of  adequate  redress  in  this  way. 
This  subject  will,  however,  hereafter  present  itself  in  a  more  enlarged 
form  (I). 

§  505.  Contribution  also  lies  between  joint-tenants,  tenants  in 
common,  and  part  owners,  of  ships  and  other  chattels,  in  some 
instances  for  charges  and  expenditures  incurred  for  the  common 
benefit.  But  it  seems  unnecessary  to  dwell  upon  these  cases,  and 
others  of  a  like  nature,  as  they  embrace  nothing  more  than  a  plain 

(g)  Noel  v.  Robinson,  1  Vern.  94,  and  Mr.  Baithby's  notes,  ibid. ;  Newman  v. 
Barton,  2  Vern.  206,  and  Mr.  Raithby's  note;  Hardwick  v.  Mynd,  1  Anstr.  109; 
Jewon  V.  Grant,  3  Swanst.  659. 

{h)  In  re  Kershaw;  Whittaker  v.  Kershaw,  45  Ch.  D.  320. 

(J)  Jervis  v.  Wolferstan,  L.  E.  18  Eq.  18. 

(fc)  Partnership  Act,  1890,  s.  24,  sub-as.  (1)  and  (2),  s.  44;  Sadler  v.  Hinxman, 
S  B.  &  Ad.  986;  Brown  v.  Tapscott,  6  M.  &  W.  119. 

(Z)  Post,  §§  659  to  683. 


214  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

application  of  principles  already  fully  expounded  (m).  We  may 
conclude  this  head  with  the  remark,  that  the  remedial  justice  of 
courts  of  equity,  in  all  cases  of  apportionment  and  contribution,  is  so 
complete,  and  so  flexible  in  its  adaptation  to  all  the  particular  circum- 
stances and  equities,  that  it  has,  in  a  great  measure,  superseded  all 
efforts  to  obtain  redress  in  any  other  tribunals. 

§  506.  EiBNS  also  give  rise  to  matters  of  account;  and  although 
this  is  not  the  sole,  or  indeed  the  necessary,  ground  of  the  interference 
of  courts  of  equity;  yet,  directly  or  incidentally,  it  becomes  a  most 
important  ingredient  in  the  remedial  justice  administered  by  them 
in  cases  of  this  sort.  The  subject,  as  a  general  head  of  equity 
jurisdiction,  will  more  properly  fall  under  discussion  in  another  place. 
But  a  few  considerations,  touching  matters  of  account  involved  in  it, 
may  be  here  glanced  at.  A  lien  at  the  common  law  is  not  in  strictness 
either  a  jus  in  re  or  a  jus  ad  rem;  but  it  is  simply  a  right  to  possess 
and  retain  property,  until  some  charge  attaching  to  it  is  paid  or 
discharged  (n).  It  generally  exists  in  favour  of  artisans  and  others, 
who  have  bestowed  labour  and  services  upon  the  property,  in  its  repair, 
improvement,  and  preservation  (o).  It  has  also  an  existence,  in  many 
other  cases,  by  the  usages  of  trade  (p);  and  in  maritime  transactions, 
as  in  cases  of  salvage  and  general  average  (q).  It  is  often  created 
and  sustained  in  equity,  unaccompanied  by  possession  and  where  it  is 
unknown  at  law;  as  in  cases  of  the  sale  of  lands,  where  a  lien  exists 
for  the  unpaid  purchase-money  or  for  purchase-money  paid  in 
anticipation  of  a  conveyance  (r).  It  is  not  confined  to  cases  of  mere 
labour  and  services  on  the  very  property,  or  connected  therewith ; 
but  it  often  is,  by  the  usage  of  trade,  extended  to  eases  of  a  general 
balance  of  accounts,  in  favour  of  factors  and  others  (s).  Now  it  is 
obvious,  that  most  of  these  cases  must  give  rise  to  matters  of  account; 
and  as  no  suit  is  maintainable  at  law  for  the  property  by  the  owner, 
until  the  hen  is  discharged,  and  as  the  nature  and  amount  of  the  lien 
often  are  involved  in  great  uncertainty,  a  resort  to  a  court  of  equity, 
to  ascertain  and  adjust  the  account,  seems,  in  many  cases,  absolutely 
indispensable  for  the  purposes  of  justice;  since,  if  a  tender  were  made 
at  law,  it  would  be  at  the  peril  of  the  owner;  and,  if  it  was  less  than 
the  amount  due,  he  would  inevitably  be  cast  in  the  suit,  and  be  put  to 
the  necessity  of  a  new  litigation  under  more  favourable  circumstances. 
So,  in  many  cases,  where  a  lien  exists  upon  various  parcels  of  land, 

(m)  Kay  v.  Johnston,  21  Beav.  536;  Pascoe  v.  Swan,  27  Beay.  508;  Leigh  v. 
Dickeson,  15  Q.  B.  D.  60. 

in)  Jackson  v.  Cummins,  5  M.  &  W.  342;  Forth  v.  Simpson,  13  Q.  B.  680. 

(o)  Chase  v.  Westmore,  5  M.  &  S.  180 ;  Steadman  v.  Hockley,  15  M.  &  W.  553. 

(p)  Kirkham  v.  Shawcross,  6  T.  E.  14;  Agra  Bank's  Claim,  In  re  European  Bk., 
L.  E.  8  Ch.  41. 

(q)  Baring  v.  Day,  8  East,  57. 

(r)  Mackreth  v.  Symmons,  15  Ves.  329;  Rose  v.  Watson,  10  H.  L.  C.  672. 

(s)  Godin  v.  London  Assce.  Co.,  1  W.  Bl.  104;  Hudson  v.  Granger,  5  B.  &  A.  27. 


§    506 — 510.]  ACCOUNT — CONTRIBUTION — LIENS.  215 

some  parts  of  which  have  been  aiterwards  sold  to  different  purchasers, 
and  the  lien  is  sought  to  be  enforced  upon  the  lands  of  the  purchaser, 
it  may  often  become  necessary  to  ascertain  what  parcels  ought 
primarily  to  be  subjected  to  the  lien  in  exoneration  of  others ;  and  a 
bill  for  this  purpose,  as  well  as  for  an  account  of  the  amount  of  the 
incumbrance,  may  be  indispensable  for  the  purposes  of  justice.  Cases 
of  pledges  present  a  similar  illustration,  whenever  they  involve 
indefinite  and  unascertained  charges  and  accounts. 

§  507.  Let  us,  in  the  next  place,  bring  together  some  few  cases 
involving  accounts,  which  may  arise  either  from  privity  of  contract  or 
relation,  or  from  adverse  or  conflicting  interests. 

§  508.  Under  this  head  the  jurisdiction  of  courts  of  equity  in 
regard  to  Rents  and  Profits  may  properly  be  considered.  A  great 
variety  of  cases  of  this  sort  resolve  themselves  into  matters  of 
account,  not  only  when  they  arise  from  privity  of  contract,  but  also 
when  they  arise  from  adverse  cla,ims  and  titles,  asserted  by  different 
persons.  Between  landlord  and  tenant  accounts  often  extend  over  a 
number  of  years,  where  there  are  any  special  terms  or  stipulations  in 
the  lease,  requiring  expenditures  on  one  side  and  allowances  on  the 
other.  In  such  cases,  where  there  are  any  controverted  claims,  a 
resort  to  courts  of  equity  is  often  necessary  to  a  due  adjustment  of 
the  respective  rights  of  each  party  (f). 

§  509.  In  some  instances  the  Court  of  Chancery  required  the 
plaintiff  to  establish  his  right  at  law  before  decreeing  an  account  (m). 
This  topic  was  of  some  importance  when  the  learned  author  wrote, 
but  has  long  since  ceased  to  be  so. 

§  510.  But  another  class  of  cases  is  still  more  frequent,  arising 
from  tortious  or  adverse  claims  and  titles  (x).  Thus,  where  a  judgment 
creditor  took  the  real  estate  of  the  judgment  debtor  in  execution,  it 
was  often  necessary  to  take  an  account  of  the  rents  and  profits,  in 
order  to  ascertain  whether,  and  when,  the  debt  had  been  satisfied, 
by  a  perception  of  those  rents  and  profits.  At  law,  the  tenant  under 
an  elegit  was  not  bound  to  answer  in  account,  except  for  the  extended 
value  (y).  But,  in  courts  of  equity,  as  the  elegit  was  a  mere  security 
for  the  debt,  the  tenant  was  always  compelled  to  account  to  the 
terre-tenant  («)  for  the  rents  and  profits  which  he  had  actually  received, 
deducting,  of  course,  all  reasonable  charges  (a). 

(t)  See  The  King  v.  The  Free  Fishers  of  Whitstable,  7  East  353. 

(u)  1  Ponbl.  Eq.  Bk.  1,  Ch.  3,  §  3,  note  {k):  Fulteney  v.  Warren,  6  Ves.  73; 
Adey  v.   Whitstable  Co.,  17  Ves.  324. 

(x)  Bac.  Abr.  Accompt,  B. 

(y)  Altered  by  Judgments  Act,  1837  (1  &  2  Vict,  c  110)  s.  11.  See  Price  v. 
Vamey,  3  B.  &  C.  733. 

(z)  Hele  v.  Lord  Bexley,  17  Beav.  14. 

(a)  Owen  v.  Griffith,  1  Ves.  250;  Ambl.  520;  Yates  v.  Hantbley,  2  Atk.  362; 
see  Bull  v.  Faulkner,  1  De  G.  &  Sm.  685. 


216  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

§  511.  It  is  observable  that,  in  these  cases  of  elegit,  there  exists  a 
privity  in  law.  In  the  ordinary  eases  of  mesne  profits,  where  a  clear 
remedy  existed  at  law,  courts  of  equity  would  not  interfere,  but  would 
leave  the  party  to  his  remedy  at  law.  Some  special  circumstances  were, 
therefore,  necessary,  to  draw  into  activity  the  remedial  interference 
of  a  court  of  equity  (b);  and,  when  these  existed,  it  would  interfere, 
not  only  in  cases  arising  under  contract,  but  in  some  instances  in  cases 
arising  under  direct  or  constructive  torts.  Thus,  for  instance,  if  a  man 
intruded  upon  lands,  and  took  the  profits,  he  was  compellable  to 
account  for  them  (c).  But  if  the  wrongdoer  dies  there  is  no  remedy 
against  his  estate  unless  it  has  been  enriched  by  the  proceeds 
improperly  acquired  or  received  (d). 

§  512.  Other  cases  may  be  easily  put  where  a  like  remedial  justice 
is  administered  in  equity,  but,  in  all  these  cases,  it  will  be  found  that 
there  has  always  been  some  peculiar  equitable  ground  for  interference; 
such  as  fraud  or  accident,  or  mistake,  the  want  of  a  discovery,  some 
impediment  at  law,  the  existence  of  a  constructive  trust,  or  the 
necessity  of  interposing  to  prevent  multiplicity  of  suits  (e).  It  is 
perfectly  clear,  that,  if  there  is  a  trust  estate,  and  the  cestui  que  trust 
comes  into  equity  upon  his  title  to  recover  the  estate,  he  will  be 
decreed  to  have  the  further  relief  of  an  account  of  the  rents  and 
profits  (/).  So,  in  the  case  of  dower  (of  which  more  will  presently  be 
said),  if  the  widow  were  entitled  to  dower,  and  her  claim  were  merely 
upon  a  legal  title;  but  she  could  not  ascertain  the  lands  out  of  which 
she  was  dowable,  and  came  into  equity  for  discovery  and  relief;  she 
would  be  entitled  to  an  account  of  the  rents  and  profits,  upon  having 
her  title  established  (g).  So,  if  an  heir  or  devisee  were  compelled 
to  come  into  equity  for  a  discovery  of  title-deeds  and  the  ascertain- 
ment of  his  title,  or  to  put  aside  some  impediments  to  his  recovery ; 
there  he  would  be  entitled  to  an  account  of  the  rents  and  profits  (h). 

§  513.  Another  case  connected  with  torts  was,  where  a  recovery 
had  been  had  in  an  ejectment,  brought  to  recover  lands,  and  after- 
wards the  plaintiff  was  prevented  from  enforcing  his  judgment  by  an 
injunction,  obtained  on  a  bill  brought  by  the  tenant,  who  died  before 
the  bill  is  finally  disposed  of.  In  such  a  case,  at  law,  the  remedy  by 
an  action  for  the  mesne  profits  was  gone  by  the  death  of  the  tenant, 
as  actions  of  tort  did  not,  till  the  Civil  Procedure  Act,  1833  (3  &  4 

(6)  Tilley  v.  Bridges,  Prec.  Ch.  252;  1  Bq.  Abr.  285. 

(c)  Phillips  V.  Homfray,  L.  E.  6  Ch.  770;  further  proceedings  (1896),  1  Ch.  465. 

(d)  Phillips  V.  Homfray,  24  Ch.  D.  439.  Cf.  Batthyany  v.  Walford,  33  Ch.  D. 
269. 

(e)  Sayer  v.  Pierce,  1  Ves.  Sen.  232;  Curtis  v.  Curtis,  2  Bro.  C.  C.  628,  632,  633; 
Tilley  v.  Bridges,  Prec.  Ch.  252. 

(/)  Dormer  v.  Fortescue,  3  Atk.  129. 
(g)  Curtis  v.  Curtis,  2  Bro.  C.  C.  620. 

(h)  Dormer  v.  Fortescue,  3  Atk.  124;  Bennet  v.  Whitehead,  2  P.  Will.  644; 
Pulteney  v.    Warren,  6  Ves.  78. 


§  511 515.]  ACCOUNT — TORTS.  217 

Will.  4,  c.  42,  s.  2),  survive  at  law.  But  a  court  of  equity  would,  in 
such  a  case,  entertain  a  bill  for  an  account  of  the  mesne  profits,  in 
favour  of  the  plaintiff  in  ejectment,  against  the  personal  representa- 
tives of  the  tenant;  for  it  is  inequitable  that  his  estate  should  receive 
the  benefit  and  profits  of  the  property  of  another  person.  It  would 
be  a  reproach  to  equity,  if  a  man,  who  has  taken  the  property  of 
another,  and  disposed  of  it  in  his  lifetime,  should,  by  his  death,  throw 
the  proceeds  into  his  own  assets,  and  leave  the  injured  party 
remediless  (i).  It  is  true,  that  the  death  of  the  tenant  cannot  be 
treated  as  the  case  of  an  accident,  against  which  a  court  of  equity 
would  relieve.  But  there  seems  the  most  manifest  justice  in  holding, 
that,  where  property  or  its  proceeds  has  come  to  the  use  of  a  party, 
the  mere  fact  that  the  title  has  originated  in  a  tort  should  not  prevent 
the  party,  and  his  personal  representatives,  from  rendering  an  account 
thereof. 

§  514.  There  was  also  another  distinct  ground,  which,  although  not 
always  followed  out  by  the  courts  of  equity,  was,  of  itself,  sufficient  to 
maintain  the  jurisdiction;  and  that  is,  that  in  these  cases  a  discovery 
was  sought;  and  if  it  was  effectual,  then,  to  prevent  multiplicity  of 
suits,  the  court  ought  to  decree  at  once  the  payment  of  the  mesne 
profits  which  have  been  thus  ascertained  (fe).  But  a  definite  and  very 
satisfactory  ground  to  maintain  the  jurisdiction  in  the  older  cases  was, 
that  it  was  inequitable  that  a  wrongdoer  who,  by  active  proceedings 
against  the  injured  party  suspended  the  just  operation  of  a  suit  or 
judgment  by  an  injunction,  should  thereby  deprive  the  other  party 
of  his  rights  and  profits,  belonging  to  the  suit  or  judgment,  if  the 
merits  turned  out  to  be  ultimately  in  favour  of  the  latter.  He  used, 
under  such  circumstances,  to  be  compelled  to  put  the  plaintiff  in  the 
original  suit  in  the  same  situation  as  if  no  injunction  had  intervened  (l). 

§  515.  Cases  of  Waste  by  tenants  and  other  persons  afford  another 
illustration  of  the  same  doctrine.  There  were  some  eases  in  which 
the  remedy  was  in  a  court  of  equity  only  prior  to  the  Judicature 
Act,  1873  (36  &  37  Vict.  c.  66),  and  which  was  consequently  known 
as  equitable  waste  (m).  Thus,  where  one  held  customary  lands  of  a 
manor,  and  opened  a  copper  mine  in  the  lands,  and  dug  the  ore, 
and  sold  great  quantities  of  it  in  his  lifetime,  and  then  died,  and  his 
heir  continued  digging  and  disposing  of  the  ore  in  like  manner;  upon 
a  bill  brought  against  the  executor  for  an  account,   and  against  the 

(t)  Bishop  of  Winchester  v.  Knight,  1  P.  Will.  407 ;  Pulteney  v.  Warren, 
6  Vea.  73;  Phillips  v.  Homfray,  24  Ch.  D.  439. 

(k)  See  Jesus  College  v.  Bloom,  3  Atk.  862;  s.c.  Ambler,  64;  Whitfield  v. 
Bewitt,  2  P.  Will.  240;  s.c.  3  P.  Will.  267;  Dormer  v.  FoHesoue,  2  Atk.  282; 
s.c.  3  Atk.  124;  Townsend  v.  Ash,  3  Atk.  336,  337. 

(I)  Pulteney  v.  Warren,  6  Ves.  73;  Grant  v.  Grant,  3  Euas.  598;  further 
proceedinga,  3  Sim.  340. 

(m)  Marquis  of  Lansdowne  v.  Marchioness  of  Lansdowne,  1  Mad.  116 ; 
Marquis  of  Ormond  v.  Kynersley,  5  Mad.  369. 


218  EQUITY   JDKISPRUDENCE.  [CH.    VIII. 

heir  also  for  an  account,  it  was  decided,  that  the  bill  was  maintainable, 
both  against  the  executor  and  the  heir.  Lord  Cowper  seems  to  have 
entertained  the  jurisdiction  upon  general  principles,  and  especially 
upon  the  ground  that  the  tenant  was  a  sort  of  fiduciary  of  the  lord; 
and  it  was  against  conscience  that  he  should  shelter  himself  or  his 
representative  from  responsibility  for  a  breach  of  trust  in  a  court 
of  equity  (n).  At  the  present  day  relief  is  granted  apart  from  any 
consideration  of  trust  (o). 

§  516.  The  case  of  Bishop  of  Winchester  v.  Knight  (p)  has  been 
supposed  to  have  been  decided  upon  the  ground  that,  as  to  the 
executor,  there  was  no  remedy  at  law ;  and  that  as  to  the  heir,  there 
was  some  fraud  or  concealment,  and  a  necessity  for  a  discovery;  or 
that,  as  to  him,  an  injunction  was  sought.  Without  some  one  of 
these  ingredients  it  would  be  difficult  to  maintain  the  case  in  its 
apparent  extent,  for  there  would  otherwise  be  a  complete  and  perfect 
remedy  at  law.  And  in  the  later  commentaries  upon  this  case,  this 
has  been  the  distinctive  ground  upon  which  its  authority  has  been 
admitted  (g).  But,  as  has  been  pointed  out,  the  common  law  remedy 
was  inadequate  and  in  some  instances  doubtful. 

§  517.  Cases  of  waste,  by  the  cutting  down  of  timber  by  tenants, 
have  given  rise  to  questions  of  the  same  sort  in  regard  to  jurisdiction. 
In  some  of  the  cases  upon  this  subject  it  seems  to  have  been  main- 
tained that,  although  the  remedy  for  waste  was  ordinarily  at  law, 
yet  if  a  discovery  were  wanted,  that  alone,  if  it  turned  out  to  be 
important,  and  was  obtained,  would  carry  the  ulterior  jurisdiction  to 
account,  in  order  to  prevent  multiplicity  of  suits  (r) ;  a  ground  the 
sufficiency  of  which  it  seems  difficult  to  resist  upon  general  prin- 
ciples (s). 

§  518.  Lord  Hardwicke,  upon  one  occasion,  expounded  this  ground 
of  jurisdiction  very  clearly  (although  he  does  not  seem  himself  after- 
wards to  have  been  satisfied  with  so  limiting  it)  (f),  and  said:  "  Waste 
is  a  loss  for  which  there  is  a  proper  remedy  by  action.  In  a  court  of 
law  the  party  is  not  necessitated  to  bring  an  action  of  waste,  but  he 
may  bring  trover.  These  are  the  remedies,  and,  therefore,  there  is 
no  ground  of  equity  to  come  into  this  court.  For  satisfaction  of 
damages  is  not  the  proper  ground  for  the  court  to  admit  of  these 
sorts  of  bills,  but  the  staying  of  waste;  because  the  court  presumes, 

(n)  Bishop  of   Winchester  v.  Knight,  1  P.   Will.   407. 

(o)  Richards  v.  Noble,  3  Mer.  673;  Tucker  v.  Linger,  8  App.  Cas.  508; 
Phillips  V.  Homfray,  24  Ch.  D.  439. 

(p)  1  P.  Will.  407. 

(q)  Pratt  v.  Brett,  2  Mad.  62;  Parrott  v.  Palmer,  8  M.  &  K.  632;  Haigh  v. 
Jaggar,  2  Coll.  231. 

(r)  Whitfield  v.  Bewit,  2  P.  Will.  240;  Garth  v.  Cotton,  3  Atk.  751;  Lee  v. 
Alston,  1  Bro.  C.  C.  194. 

(s)  See  Barker  v.  Dacie,  6  Ves.  688;  Doherty  v.  Allman,  3  App.  Cas.  709. 

(t)  See  Garth  v.  Cotton,  3  Atk.  756;  s.c.  1  Ves.  Sen.  524,  646. 


§  516 — 519.]  ACCOUNT — TORTS.  219 

when  a  man  has  done  waste,  he  may  do  the  same  again;  and,  there- 
fore, will  suffer  the  lessor  or  reversioner,  when  he  brings  his  bill  for 
injunction  to  stay  waste,  to  pray,  at  the  same  time,  for  an  account  of 
the  waste  done.  And  it  is  upon  this  ground,  to  prevent  multiplicity 
of  suits,  that  this  court  will  decree  an  account  of  waste  done  at  the 
time  with  an  injunction.  Just  like  the  case  of  a  bill  for  a  discovery 
of  assets;  an  account  may  be  pray«d  for  at  the  same  time.  And 
though,  originally,  the  bill  was  only  brought  for  a  discovery  of 
assets,  yet,  to  prevent  a  multiplicity  of  suits,  the  court  will  direct  an 
account  to  be  taken."  But  more  logical  grounds  can  be  supplied  in 
most  instances,  for  the  title  of  the  tenant  generally  rests  in  agreement 
or  is  at  any  rate  regulated  by  some  contract  (u).  In  the  case  of  legal 
waste  by  a  limited  owner,  the  right  to  an  account  depends  upon  the 
plaintiff  establishing  his  right  to  an  injunction  (x). 

§  518a.  By  the  Judicature  Act,  1873  (36  &  37  Vict.  c.  66),  s.  24, 
sub-s.  3,  it  is  provided  that  an  estate  for  life  without  impeachment  of 
waste  shall  not  confer  or  be  deemed  to  have  conferred  upon  the  tenant 
for  life  any  legal  right  to  commit  waste  of  the  description  known  as 
equitable  waste,  unless  an  intention  to  confer  such  right  shall 
expressly  appear  by  the  instrument  creating  the  estate.  Equitable 
waste  arose  where  the  interests  of  the  parties  were  equitable  (y),  or 
might  consist  in  the  abuse  by  a  legal  owner  of  his  right  to  commit 
waste  to  the  prejudice  of  one  entitled  (even  contingently)  to  the 
estate  («).  And  by  the  Settled  Land  Act,  1882  (45  &  46  Vict.  c.  38), 
s.  35,  it  is  provided  that  where  there  is  a  teisant  for  life  impeachable 
for  waste,  and  there  is  on  the  settled  land  timber  ripe  and  fit  for 
cutting,  the  tenant  for  life  may,  with  the  consent  of  trustees  or  by 
order  of  the  court,  cut  and  sell  such  timber,  the  proceeds  of  which  shall 
go,  as  to  three-fourths  as  capital  money  under  the  Act,  and  as  to  one- 
fourth  to  the  tenant  for  life.  In  connection  with  the  cutting  of  timber 
and  the  right  to  the  proceeds  when  cut,  a  distinction  between  timber 
estates  and  other  estates  must  be  remembered.  Upon  a  timber  estate 
the  felled  timber  and  loppings  become  the  property  of  the  limited 
owner,  provided  the  felling  and  topping  is  justifiable  as  a  provident  act 
of  husbandry  (a). 

§  619.  In  regard  to  Tithes,  also,  and,  incidentally,  to  Moduses 
ajid    other   compositions,  courts   of    equity    in   England   exercised   an 

(u)  Doherty  v.  Allman,  3  App.  Cas.  709;  Kehoe  v.  Marquis  of  Lansdowne 
[1893]  A.  C.  451. 

(x)  Richards  \.  Noble,  3  Mer.  231;  Gent  v.  Harrison  Johns,  577;  Higginbotham 
V.  Hawkins,  L.  K.  7  Ch.  676. 

(y)  Marquis  of  Lansdowne  v.  Marchioness  of  Lansdowne,  1  Mad.  116 ; 
Marquis  of  Ormond  v.  Kynersley,  5  Mad.  369. 

(z)  Marker  v.  Marker,  9  Hare  1;   Turner  v.    Wright,  2  De  G.  P.   &  J.  234, 

(a)  Lord  Lovat  v.  Duchess  of  Leeds,  2  Dr.  &  Sm.  75;  Honeywood  v.  Honey- 
wood,  L.  E.  18  Eq.  306;  In  re  Harrison,  Harrison  v.  Harrison,  28  Ch.  D.  220; 
Dashwood  v.  Maguire  [1891]  3  Ch.  306. 


220  EQUITY   JURISPRUDENCE.  [CH.    VIII. 

extensive  jurisdiction  of  an  analogous  nature  (b).  There  was  a  very 
ancient  jurisdiction  in  the  Court  of  Exchequer  in  the  matter  of  tithes 
until  its  jurisdiction  in  equity  was  abolished  by  5  Vict.  c.  5.  Lord 
Nottingham  is  said  to  have  stated,  that  the  jurisdiction  in  the 
JExchequer  over  tithes,  by  bill  in  equity,  was  not  earlier  than  the  reign 
of  Henry  VIII.,  and  that  it  took  its  rise  from  the  Statute  of  Augmen- 
tations, in  his  reign  (33  Hen.  8,  c.  39)  (c).  But  other  persons  assert 
that  it  had  a  more  early  origin;  and,  in  respect  to  extra -parochial 
tithes,  which  are  a  part  of  the  ancient  inheritance  of  the  crown,  they 
insist  that  suits  for  tithes  must  always  have  fallen  within  the  compass 
of  the  direct  and  substantial  jurisdiction  of  the  Court  of  Exchequer,  as 
a  court  of  revenue ;  and  that  the  proper  jurisdiction  of  tithes  belonged 
there  (d).  Be  this  as  it  may,  the  jurisdiction  of  the  Court  of  Chancery 
over  the  same  subject  seems  to  have  been  of  a  much  later  origin,  or, 
at  least,  to  have  been  matter  of  doubt  and  controversy  to  a  much 
later  period;  the  jurisdiction  not  having  been  firmly  established  until 
after  the  restoration  of  Charles  II.  (e).  This  concurrent  jurisdiction  in 
both  courts  was  generally  considered  to  be  merely  incidental  and 
collateral,  arising  from  the  general  equitable  jurisdiction  of  these  courts 
in  matters  of  account,  and  in  compelling  a  discovery  (/).  By  force  of 
the  Tithe  Commutation  Act,  1836  (6  &  7  Will.  IV.  c.  71),  and  amending 
ftatutes  all  tithe  was  commuted  into  a  rent-charge,  moduses  abolished, 
and  provision  made  for  the  recovery  of  tithe  rent-charge.  As  tithe  is 
believed  to  be  non-existent  in  any  other  part  of  the  British  Dominions, 
it  seems  unnecessary  to'  refer  further  to  the  matter. 

§  521.  Having  passed  under  review  some  of  the  principal  heads  of 
Equity  Jurisdiction  in  matters  of  account,  which  do  not  require  any 
elaborate  examination,  or  belong  to  subjects  which  peculiarly  illus- 
trate the  nature  of  it,  we  may  conclude  this  examination  with  some 
few  matters  which  appropriately  belong  to  the  head  of  Account,  and 
are  incident  to  the  exercise  of  this  remedial  jurisdiction  in  all  its 
iorms. 

§  522.  In  the  first  place,  in  all  bills  in  equity  for  an  account,  both 
parties  were  deemed  actors  when  the  cause  was  before  the  court  upon 
its  merits.  It  is  upon  this  ground  that  the  party  defendant,  contrary 
to  the  ordinary  course  of  equity  proceedings,  was  entitled  to  orders  in 
a  cause  to  which  a  plaintiff  alone  is  generally  entitled.  As,  for 
instance,  in  such  a  case,  a  defendant  might  have  an  order  for  a  ne  exeat 
regno,  even  against  a  co-defendant  (g).     So,  it  is  a  general  rule,  that 

(b)  Com.  Dig.  Chancery,  3  C. ;  id.  Dismes,  M.  13. 

(c)  Harg.  note  to  Co.  Litt.  159a,  note  290;  Anon.  1  Freem.  303. 

(d)  Hardcastle  v.  Smithson,  3  Atk.  244. 

(e)  Anon,  1  Freem.  203;  Anon.,  2  Ch.  Cas.  337;  s.c.  2  Freem.  27;  1  Mad. 
Pr.   Ch.   84. 

(/)  3  Black.  Comm.  437  ;  Co.  Litt.  159a,  Hargrave's  note,  290. 
(g)  Dane's  Case,  1  P.  Will.  263. 


§  521 — 523.]  ACCOUNT — waste.  221 

no  person  but  a  plaintiff  can  entitle  himself  to  a  decree.  But  in  bills 
for  an  account,  if  a  balance  were  ultimately  found  in  favour  of  the 
defendant,  he  was  entitled  to  a  decree  for  such  balance  against  the 
plaintifi  (h).  And  for  a  like  reason,  although  a  defendant  could  not 
ordinarily  revive  a  suit  which  had  not  proceeded  to  a  decree ;  yet,  in  a 
bill  of  an  account,  if  the  'plaintifif  died  after  an  interlocutory  decree  to 
account,  the  defendant  was  entitled  to  revive  the  suit  against  the 
personal  representatives  of  the  plaintiff  (i).  And  if  the  defendant  died, 
his  personal  representative  might  revive  the  suit  against  the  plain- 
tiff (fc).  The  good  sense  of  the  doctrine  seems  to  be  that,  wherever  a 
defendant  may  derive  a  benefit  from  further  proceedings,  whether 
before  or  after  a  decree,  he  may  be  said  to  have  an  interest  in  it,  and 
consequently  ought  to  have  a  right  to  revive  it  (Z).  Redemption 
actions,  however,  stand  upon  a  different  footing.  No  order  could  be 
made  against  a  mortgagor  plaintiff,  unless  his  bill  contained  an  offer 
to  pay  what  should  appear  to  be  due  on  taking  the  account  (wi),  and 
even  where  the  bill  contained  an  offer  to  redeem  the  court  might  refuse 
to  order  payment  of  an  adverse  balance  (n). 

§  523.  In  the  next  place,  there  are  some  matters  of  defence,  either 
peculiarly  belonging  to  cases  of  account,  or  strikingly  illustrative  of 
some  of  the  principles  already  alluded  to,  under  the  head  of  accident, 
mistake,  or  fraud.  Thus,  it  is  ordinarily  a  good  bar  to  an  action  for 
an  account,  that  the  parties  have  already  in  writing  stated  and  adjusted 
the  items  of  the  account,  and  struck  the  balance  (o).  In  such  a  case 
a  court  of  equity  would  not  int-erfere;  for  under  such  circumstances, 
an  action  upon  an  account  stated  lay  at  law  (p),  and  there  was  no 
ground  for  resorting  to  equity  which  declined  to  entertain  an  action  for 
a  bare  money  claim  (q).  If,  however,  there  had  been  an  account 
stated,  that  might  be  set  up  by  way  of  plea,  as  a  bar  to  all  discovery 
and  relief,  unless  some  matter  was  shown  which  called  for  the  inter- 
position of  a  court  of  equity.  As  if  there  had  been  any  mistake,  or 
omission,  or  accident,  or  fraud,  or  undue  advantage,  by  which  the 
account  stated  was  in  truth  vitiated,  and  the  balance  was  incorrectly 
fixed,  there  a  court  of  equity  would  not  suffer  it  to  be  conclusive  upon 
the  parties ;  but  would  allow  it  to  be  opened    and    re-examined.      In 

(h)  Knebell  v.  White,  2  Y.  &  C.  Ex.  15;  Stainton  v.  Garron  Co.,  29  L.  J.  Ch. 
587;  30  L.  J.  Ch.  713;  11  L.  T.  N.  S.  1. 

(i)  Lady  Stowell  v.  Cole,  2  Vern.  219,  and  Mr..  Eaithby's  note;  Horwood  v, 
Schmedes,  12  Ves.  311. 

(k)  Kent  V.  Kent,  Prec.  Ch.  197. 

(I)  Williams  v.  Cooke,  10  Ves.  406;  Horwood  v.  Schemedes,  12  Ves.  311. 

(m)  Hollis  V.  Bulpitt,  13  W.  E.  492. 

(n)  Knight  v.  Bowyer,  2  De  G.  &  J.  421. 

(o)  Taylor  v.  Haylin,  2  Bro.  C.  C.  810;  Johnson  v.  Curtis,  cited  in  note  ibid. 
Chambers  v.  Goldwin,  9  Ves.  254. 

(p)  Lubbock  V.  Tribe,  3  M.  and  W.  607. 

(q)  Higginbotham  v.  Hawkins,  L.  E.  7  Ch.  676 ;  Morgan  v.  Larivihe,  L.  E.  7 
H.  L.  433;  Rogers  v.  Ingham,  3  Ch.  D.  361. 


222  EQUITY   JURISPRDDENCE.  [CH.    Vni. 

cases  of  gross  fraud,  or  gross  mistake,  or  undue  advantage  or  imposi- 
tion, or  where  a  confidential  relation  exists  between  the  parties,  the 
court,  following  the  old  practice,  will  generally  direct  the  whole 
account  to  be  opened,  and  taken  de  novo ;  failing  proof  of  these  matters 
the  court  will  allow  the  account  to  stand,  with  liberty  to  the  plaintiff 
to  surcharge  and  falsify  it;  the  effect  of  which  is,  to  leave  the  account 
in  full  force  and  vigour,  as  a  stated  account,  except  so  far  as  it  can  be 
impugned  by  the  opposing  party  (r),  who  has  the  burden  of  proof  on 
him  to  establish  errors  and  mistakes,  as  a  condition  precedent  to 
entitle  him  to  have  either  form  of  order  (s).  Agreeably  to  these  prin- 
ciples where  a  party  is  ordered  to  account  generally  it  is  not  unusual 
to  insert  a  direction  that  regard  shall  be  had  to  settled  accounts 
between  the  parties  (i).  A  party  originally  entitled  to  re-open  an 
account  might  by  delay  be  relegated  to  a  right  to  surcharge  and 
falsify  (w). 

§  524.  The  liberty  to  surcharge  and  falsify  includes  not  only  an 
examination  of  errors  of  fact,  but  of  errors  of  law  (x).  So,  in  the  case 
of  Daniell  v.  Sinclair  (y),  decided  by  the  Privy  Council,  on  appeal  from 
the  Court  of  Appeal  of  New  Zealand,  it  was  held  that,  where  a  mort- 
gage account  had  been  settled  on  the  footing  of  compound  interest, 
both  parties  wrongly  understanding  the  mortgage  deed  to  require  the 
same,  that  such  mortgage  account  might  be  re-opened. 

§  525.  These  terms,  "  surchsu-ge  "  and  "  falsify,"  have  a  distinct 
eense  in  the  vocabulary  of  courts  of  equity,  a  little  removed  from 
that  which  they  bear  in  the  ordinary  language  of  common  life.  In 
the  language  of  common  life  we  understand  ' '  surcharge  ' '  to  import 
an  overcharge  in  quantity,  or  price,  or  value,  beyond  what  is  just, 
correct,  and  reasonable.  In  this  sense,  it  is  nearly  equivalent  to 
' '  falsify  ' ' ;  for  every  item  which  is  not  truly  charged  as  it  should  be , 
is  false;  and,  by  establishing  such  overcharge,  it  is  falsified.  But  in 
the  sense  of  courts  of  equity  these  words  are  used  in  contradistinction 
to  each  other.  A  surcharge  is  appropriately  applied  to  the  balance  of 
the  whole  account;  and  supposes  credits  to  be  omitted,  which  ought 
to  be  allowed.  A  falsification  applies  to  some  item  in  the  debits;  and 
supposes  that  the  item  is  wholly  false,  or  in  some  part  erroneous. 
This  distinction  is  taken  notice  of  by  Lord  Hardwicke;  and  the  words 
used  by  him  are  so  clear  that  they  supersede  all  necessity  for  further 
commentary.  "  Upon  a  liberty  to  the  plaintiff  to  surcharge  and 
falsify,"  says  he,  "the  onus  probandi  is  always  on  the  party  having 

(r)  Coleman  v.  Mellersh,  2  Mac.  &  G.  309;  Williamson  v.  Barhour,  9  Ch.  D. 
529;  Gething  v.  Keighley,  9  Ch.  D.  647. 

(s)  Taylor  v.  Haylin,  2  Bro.  C.  C.  310;  Johnson  v.  Curtis,  cited,  ibid.; 
Chambers  v.  Goldwin,  9  Ves.  254;  In  re  Webb,  Lambert  v.  Still  [1894]  1  Ch.  73. 

(t)  Buckeridge  v.   Whalley,  33  L.  J.  Ch.  649;  Holgate  v.  Shutt,  28  Ch.  D.  111. 

(m)  Brownell  v.  Brownell,  2  Bro.  C.  C.  62;  Miller  v.  Craig,  6  Beav.  432. 

(x)  Roberts  v.  Kuffin,  2  Atk.  112. 

(y)  6  App.  Cas.  181. 


§  524 — 526.]  ACCOUNT — tithes.  223 

that  liberty ;  for  the  court  takes  it  as  a  stated  account,  and  establishes 
it.  But,  if  any  of  the  parties  can  show  an  omission,  for  which  credit 
ought  to  be,  that  is  a  surcharge ;  or  if  anything  is  inserted  that  is  a 
wrong  charge,  he  is  at  liberty  to  show  it,  and  that  is  a  falsification. 
But  that  must  be  by  proof  on  his  side.  And  that  makes  a  great  differ- 
ence between  the  general  cases  of  an  open  account,  and  where  [leave] 
only  to  surcharge  and  falsify ;  for  such  must  be  made  out  (a) . " 

§  525a..  It  may  not  be  superfluous  to  glance  at  one  or  two  matters 
of  practice'  which  involve  matters  of  principle.  The  court  is  now 
specifically  empowered  by  the  Rules  of  the  Supreme  Court,  1883, 
Order  XXXIII.  r.  3,  to  "give  special  directions  with  regard  to  the 
mode  in  which  the  account  is  to  be  taken  or  vouched,  and  in  particular 
may  direct  that  in  taking  the  account,  the  books  of  account  in  which 
the  accounts  in  question  have  been  kept  shall  be  taken  as  prima  facie 
evidence  of  the  truth  of  the  matters  therein  contained,  with  liberty  to 
the  parties  interested  to  take  such  objections  thereto  as  they  may  be 
advised."  This  rule  does  no  more  than  embody  the  pre-existing  prac- 
tice going  back  for  many  years  (a).  Where  the  accounting  party,  by 
his  acts,  has  rendered  the  taking  of  a  correct  account  difficult  or  impos- 
sible, a  penal  order  may  be  made  against  him,  as  by  fixing  him  with  a 
highly  penal  rate  of  interest  (b),  or  making  him  liable  fori  a  sum 
arbitrarily  fixed  by  way  of  damages  (c),  or  directing  that  he  shall  be 
liable  for  the  total  amount  shown  on  the  debit  side,  but  have  to  justify 
all  items  on  the  credit  side  (d),  notwithstanding  that  errors  are  usually 
corrected  as  of  right  (e). 

§  526.  What  shall  constitute,  in  the  sense  of  a  court  of  equity,  a 
stated,  or  as  it  is  generally  called  a  settled,  account,  is  in  some  measure 
dependent  upon  the  particular  circumstances  of  the  case.  An  account 
in  writing,  examined  and  signed  by  the  parties,  will  be  deemed  a 
settled  account,  notwithstanding  it  contains  the  ordinary  preliminary 
clause,  that  errors  are  excepted  (/).  But  in  order  to  make  an  account 
a  settled  account,  it  is  not  necessary  that  it  should  be  signed  by  the 
parties.  It  is  sufficient  if  it  has  been  examined  and  accepted  by  both 
parties  (g).  And  this  acceptance  need  not  be  express;  but  may  be 
implied  from  circumstances;  as  where  an  account  has  been  presented, 
and  no  objection  is  made  thereto,  after  a  lapse  of  time,  varying  accord- 
ing   to   the    circumstances,  it   is   treated  as    an    acquiescence   in    the 

(z)  Pitt  v.  Cholmondeley,  2  Ves.  Sen.  565,  566. 

(a)  Lord  Hardwicke  v.  Vernon,  4  Ves.  411;  Ghalmer  v.  Bradley,  1  J.  &  W.  51; 
Skipworth  v.  Skipworth,  9  L.  J.  N.  S.  Ch.  182;  Allfrey  v.  Allfrey,  1  Mac.  &  G.  87. 

(b)  Walmsley  v.  Walmsley,  3  Jo.  &  L.  556. 

(c)  Duke  of  Leeds  v.  Earl  of  Amherst,  20  Beav.  239. 

(d)  Morehouse  v.  Newton,  3  De  G.  &  Sm.  307. 

(e)  Johnson  v.  Curtis,  2  Bro.  C.  C.  311  n. ;  David  v.  Spurling,  1  Euss.  &  M.  64. 
(/)  Johnson  v.  Curtis,  2  Bro.  C.  C.  311n;  David  v.  Spurling,  1  Russ.  &  M.  640; 

ijommercial   Bk.    of   Scotland   v.   Rhind,    3   Macq.    H.    L.    643;    the   common   law 
rule  was  the  same  ;  Perry  v.  Attwood,  6  BU.  &  B.  at  p.  700. 

(g)  Willis  v.  Jernegan,  2  Atk.  261;  Coventry  v.  Barclay,  3  De  G.  J.  &  S.  820. 


224  EQUITY   JURISPKUDENCE.  [CH.    VIU. 

correctness  of  the  account,  which  is  to  be,  therefore,  deemed  a  settled 
account  (h).  In  truth,  in  each  case,  the  rule  admits,  or  rather  requires, 
the  same  general  exposition.  It  is,  that  an  account  rendered  shall  be 
deemed  an  account  stated,  from  the  presumed  approbation  or 
acquiescence  of  the  parties,  unless  an  objection  is  made  thereto  within 
a  reasonable  time.  That  reasonable  time  is  to  be  judged  of,  in  ordinary 
cases,  by  the  habits  of  business  at  home  or  abroad;  a-nd  the  usual 
course  is  required  to  be  followed,  unless  there  are  special  circumstances 
to  vary  it,  or  to  excuse  a  departure  from  it.  A  customer  is  not  bound  to 
examine  his  banker's  pass  book,  immediately  upon  receiving  it,  but  may 
be  fixed  with  notice  of  matters  therein  contained  after  the  lapse  of  time 
which  the  law  considers  reasonable  (i).  Conversely  a  banker  is  allowed 
to  correct  errors  in  the  passbook  (k),  but  if  he  omits  doing  so  for  a  con- 
siderable time  the  customer  may  be  entitled  to  treat  the  balance  shown 
as  his  own  private  property  (l).  And  this  last-mentioned  ground  of 
estoppel  is  applicable  where  a  party  changes  his  position  by  reason  of 
a  faulty  account  (m). 

§  527.  Upon  like  grounds,  a  fortiori,  a  settled  account  will  be 
deemed  conclusive  between  the  parties,  unless  some  fraud,  mistake, 
omission,  or  inaccuracy  is  shown.  For  it  would  be  most  mischievous 
to  allow  settled  accounts  between  the  parties,  especially  where 
vouchers  have  been  delivered  up  or  destroyed,  to  be  unravelled,  unless 
for  urgent  reasons,  and  under  circumstances  of  plain  error,  which 
ought  to  be  corrected.  And,  in  cases  of  settled  accounts,  the  court 
will  not  generally  open  the  account;  but  will,  at  most,  only  grant 
liberty  to  surcharge  and  falsify,  unless  in  cases  of  apparent  fraud  (n). 

§  528.  In  regard  to  acquiescence  in  stated  accounts,  although  it 
amounts  to  an  admission,  or  presumption,  of  their  correctness,  it  by 
no  means  establishes  the  fact  of  their  having  been  settled,  even 
though  the  acquiescence  has  been  for  a  considerable  time.  There 
must  be  other  ingredients  in  the  case  to  justify  the  conclusion  of  a 
settlement  (o). 

§  529.  It  was,  too,  a  most  material  ground,  in  all  bills  for  an 
account,  to  ascertain  whether  they  were  brought  to  open  and  correct 
errors  in  the  account  recenti  facto;  or  whether  the  application  was 
made  after  a  great  lapse  of  time.     In  cases  of  this  sort,  where  the 

(fe)  Willis  v.  Jernegan,  2  Atk.  251;  Tickel  v.  Short,  2  Ves.  239;  Hunter  v. 
Belcher,  2  De  G.  J.  &  S.  194;  Parkinson  v.  Hanbury,  2  De  G  J.  &  S  450- 
affd.   L.   E.  2  H.  L.   1. 

(«')  Cavendish  v.  Greaves,  24  Beav.  163 ;  Kapitagilla  Rubber  Estates  v.  National 
Bk  of  India,  (1909),  2  K.  B.  1010. 

(k)  Commercial  Bk.   of  Scotland  v.   Rhind,  3  Macq.   H.  L.   463. 

(I)  Skyring  v.   Greenwood,  4  B.  &  C.  281;  Shaw  v.  Picton,  4  B.  &  C.  715 

(m)  Cave  v.  Mitts,  7  H.  &  N.  913. 

(n)  Brownell  v.  Brownell,  2  Bro.  C.  C.  62;  Davis  v.  Spurling,  1  Euss.  &  M.  64; 
Millar  v.  Craig,  6  Beav.  433;  Wier  v.  Tucker,  L.  E.  14  Eq.  25. 

(o)  Lord  Glancarty  v.  Latouch,  1  Ball  &  B.  428;  Irving  v.  Young  1  Sim 
&  Stu.  333. 


§  527.]  ACCOUNT — IN  GENERAL.  225 

demand  was  strictly  of  a  legal  nature,  or  might  be  cognizable  at  law, 
courts  of  equity  governed  themselves  by  the  same  limitations  as  to 
entertaining  such  suits  as  were  prescribed  by  the  Statute  of  Limita- 
tions in  regard  to  suits  in  courts  of  common  law  in,  matters  of  account. 
If,  therefore,  the  ordinary  limitation  of  such  suits  at  law  was  six 
years,  courts  of  equity  would  foUow  the  same  period  of  limitation  (p). 
In  so  doing,  they  did  not  act,  in  cases  of  this  sort  (that  is,  in  matters 
of  concurrent  jurisdiction)  so  rtiuch  upon  the  ground  of  analogy  to 
the  Statute  of  Limitations,  as  positively  in  obedience  to  such 
statute  (g).  But  where  the  demand  was  not  of  a  legal  nature,  but  was 
purely  equitable ;  or  where  the  bar  of  the  statute  was  inapplicable ; 
courts  of  equity  had  another  rule,  founded  sometimes  upon  the 
analogies  of  the  law,  where  such  analogy  existed,  and  sometimes  upon 
its  own  inherent  doctrine,  not  to  entertain  stale  or  antiquated  demands, 
and  not  to  encourage  laches  and  negligence  (r).  Hence,  in  matters  of 
account,  although  not  barred  by  the  Statute  of  Limitations,  courts  of 
equity  refused  to  interfere  after  a  considerable  lapse  of  time,  from 
considerations  of  public  policy,  from  the  difficulty  of  doing  entire 
justice,  when  the  original  transactions  had  become  obscure  by  time, 
and  the  evidence  might  have  been  lost,  and  from  the  consciousness 
that  the  repose  of  titles  and  the  security  of  property  are  mainly 
promoted  by  a  full  enforcement  of  the  maxim,  Vigilantibus ,  non 
dormientihus,  jura  suhveniunt.  Under  peculiar  circumstances,  how- 
ever, excusing  or  justifying  the  delay,  courts  of  equity  would  not 
refuse  their  aid  in  furtherance  of  the  rights  of  the  party;  since  in 
such  cases  there  was  no  pretence  to  insist  upon  laches  or  negligence, 
as  a  ground  for  dismissal  of  the  suit  (s) ;  and  in  one  case  carried 
back  the  account  over  a  period  of  fifty  years  (t).  But  at  the  present  day 
the  Chancery  Division  of  the  High  Court  is  as  much  bound  by  the 
Statutes  of  Limitations  as  is  any  other  division  of  the  High  Court. 

(p)  Hovenden  v.  Lord  Annesley,  2  Sch.  &  Lefr.  629;  Smith  v.  Clay,  3  Bro. 
C.  C.  639,  note. 

(g)  Hovenden  v.  Lord  Annesley,  2  Sch.  &  Lefr.  629,  631. 

(r)  Millar  v.  Craig,  6  Beav.  433;  Pritt  v.  Clay,  6  Beav.  503. 

(s)  Lopdell  V.  Creagh,  1  Bligh  N.  S.  255. 

(t)  Stainton  v.  Carron  Co.,  24  Beav.  346;  further  proceedings,  29  L.  J.  Ch.  687 ; 
on  appeal  30  L.  J.  Ch.  713;  in  H.  L.,  11  L.  T.  N.  S.  1. 


E.J.  15 


226  EQUITY    JURISPRUDENCK.  [CH.    IX. 


CHAPTER    IX. 


ADMINISTRATION. 


§  530.  Having  thus  gone  over  some  of  the  more  important  cases 
in  which  matters  of  account  are  involved,  as  the  principal,  and  some- 
times as  the  exclusive  ground  of  jurisdiction,  we  shall  now  take  leave 
of  this  part  of  the  subject,  and  proceed  to  the  consideration  of  other 
branches  of  concurrent  jurisdiction  in  equity,  in  which,  although 
accounts  are  sornetimes  involved,  yet  the  jurisdiction  is  derived  from, 
or  essentially  connected  with,  other  sources  of  jurisdiction;  and 
accounts,   whenever  taken,  are  mere  incidents  to  other  relief. 

§  531.  And,  in  the  first  place,  the  jurisdiction  of  courts  of  equity 
in  the  administration  of  the  assets  of  deceased  persons.  The  word 
assets  (a)  is  derived  from  the  French  word  aissez,  which  means 
sufficient,  or  enough ;  that  is,  sufficient,  or  enough,  in  the  hands  of  the 
executor  or  administrator,  to  make  him  chargeable  to  the  creditors, 
legatees,  and  distributees  of  the  deceased,  so  far  as  the  personal 
property  of  the  deceased  extends,  which  comes  to  the  hands  of  the 
executor  or  administrator  for  administration.  In  an  accurate  and  legal 
sense,  all  the  personal  property  of  the  deceased  which  is  of  a  saleable 
nature,  and  may  be  converted  into  ready  money,  is  deemed  assets  (b). 
But  the  word  is  not  confined  to  such  property;  for  all  other  property 
of  the  deceased  which  is  chargeable  with  his  debts  or  legacies,  and  is 
applicable  to  that  purpose,  is  in  a  large  sense  assets  (c). 

§  532.  It  has  been  said  that  the  whole  jurisdiction  of  courts  of 
equity  in  the  administration  of  assets  is  founded  on  the  principle 
that  it  is  the  duty  of  the  court  to  enforce  the  execution  of  trusts, 
and  that  the  executor  or  administrator  who  has  the  property  in  his 
hands  is  bound  to  apply  that  property  to  the  payment  of  debts  and 
legacies,  and  to  apply  the  surplus  according  to  tie  will  of  the 
testator,  or,  in  case  of  intestacy,  according  to  the  Statute  of  Distribu- 
tions; so  that  the  sole  ground  on  which  courts  of  equity  proceed,  in 
cases  of  this  kind,  is  to  be  deemed  the  execution  of  a  trust  (d). 

(o)  A  misreading  of  the  scribes'  flourish,  further  exemplified  in  the  conventional 
abbreviation,  viz.,  for  videlicet.  Cf.  Butler  and  Baker's  Gasie,  3  Co.,  at  fo. 
35b,  where  "  escroll "  of  the  text  becomes  the  more  familiar  "escrow"  in  the 
shoulder  note. 

(b)  2  Black.  Comm.  510;  Toller  on  Executors,  B.  2,  ch.  1,  p.  137. 

(c)  Black.  Comm.  244,  340;  Toller  on  Executors,  B.  3,  ch.  8,  p.  409. 

(d)  In  re  Thomas,  Sutton  Garden  ti  Co.  v.  Thomas  [1912],  2  Ch.  348. 


§    530 — 534.]  ADMINISTRATION.  227 

§  533.  This  is  certainly  a  very  satisfactory  foundation  on  which  to 
rest  the  jurisdiction  in  many  cases ;  for,  under  many  circumstances, 
as  an  execution  of  a  trust,  the  subject  would  be  properly  cognizable 
in  equity,  and  especially  if  the  party  would  not  be  chargeable  at  law, 
since  it  was  the  ordinary  reason  for  a  court  of  equity  to  grant  relief 
that  the  party  was  remediless  at  law.  It  has  also  been  truly  said  that 
the  only  thing  inquired  of  in  a  court  of  equity  is,  whether  the 
property  bound  by.  a  trust  has  come  into  the  hands  of  persons  who 
are  either  bound  to  execute  the  trust  or  to  preserve  the  property  for 
the  persons  entitled  to  it.  If  we  advert  to  the  cases  on  the  subject 
we  shall  find  that  trusts  are  enforced  not  only  against  those  persons 
who  are  rightfully  possessed  of  trust  property  as  trustees,  but  also 
against  all  persons  who  come  into  possession  of  the  property  bound  by 
the  trust,  as  purchasers  for  value  with  notice  of  the  trust,  or  transferees 
who  have  not  given  value  (commonly  called  volunteers),  whether  they 
have  notice  of  the  trust  or  not.  And  whosoever  so  comes  into 
possession  is  considered  as  bound,  with  respect  to  that  special  property, 
to  the  execution  of  the  trust  (e). 

§  534.  Certainly  to  no  persons  can  these  considerations  more 
appropriately  apply  than  to  executors  and  administrators,  and  those 
claiming  under  them,  with  notice  of  the  administration  and  assets. 
But  if  it  were  the  sole  ground  of  sustaining  the  jurisdiction,  that  it 
is  the  case  of  a  trust  cognizable  in  equity  alone,  it  would  follow  that, 
instead  of  being  a  matter  of  concurrent  jurisdiction,  it  would  be  a 
matter  belonging  to  the  exclusive  jurisdiction  of  equity.  For, 
although  equity  does  not  purport  to  entertain  jurisdiction  of  all  trusts 
— some  of  them,  such  as  cases  of  bailments,  being  ordinarily  cog- 
nizable at  law  (/) — yet,  of  such  trusts  as  are  peculiar  to  courts  of 
equity,  the  jurisdiction  is  exclusive  in  such  courts.  Now,  we  all  know 
that,  formerly,  both  the  courts  of  common  law  and  the  ecclesiastical 
courts  had  cognizance  of  administrations,  and  many  suits  respecting 
the  administration  of  assets  were  daily  entertained  therein.  Courts 
of  equity,  therefore,  in  assuming  general  jurisdiction  over  cases  of 
administration,  did  indeed,  in  some  measure,  found  themselves  upon 
the  notion  of  a  constructive  trust  in  the  executors  or  administrators  (g) . 
But  the  fact  of  there  being  a  constructive  trust  was  not  the  sole 
ground  of  jurisdiction.  Other  auxiliary  grounds  also  existed,  such 
as  the  necessity  of  taking  accounts,  and  the  consideration  that  the 
remedy  at  law,  when  it  existed,  was  not  plain,  adequate,  and  complete. 
The  jurisdiction,   therefore,   now  assumed  by  courts  of  equity  to   so 

(e)  Thomdike  v.  Hunt,  3  De  G.  &  J.  563;  Hennessey  v.  Bray,  33  Beav.  96; 
Sherijf  v.  Butler,  L.  E.  2  Bq.  549.  A  stranger  who  has  received  assets  from  an  exe- 
cutor de  son  tort  cannot  be  called  to  account  as  executor  de  son  tort,  though  the  assets 
can  be  followed  in  equity  in  his  hands.  Hill  v.  Curtis,  L.  E.  1  Bq.  90.  See  Rayner 
V.  Koehler,  L.  E.  14  Bq.  262. 

(/)  Black.  Coram.  431,  432.  (g)  Bac.  Abr.  Legacy,  M. 


228  EQUITY    JURISPRUDENCE.  [CH.    IX. 

wide  an  extent  over  all  administrations  and  the  settlement  of  estates, 
in  cases  of  testacy  and  intestacy,  is  not  (as  it  should  seem)  exclusively 
referable  to  the  mere  existence  of  a  constructive  trust  vi^hich  is  often 
sufficiently  remediable  at  law;  but  it  is  referable  to  the  mixed  con- 
siderations already  adverted  to,  each  of  which  has  a  large  operation 
in  equity. 

§  535.  A  little  attention  to  the  nature  of  the  jurisdiction  exercised 
in  the  courts  of  common  law  and  formerly  by  the  ecclesiastical  courts 
in  cases  of  administrations  will  abundantly  show  the  necessity  of  the 
interposition  of  courts  of  equity.  In  the  first  place,  in  suits  at  common 
law,  nothing  more  could  be  done  than  to  establish  the  debt  of  the 
creditor;  and  if  there  were  any  controversy  as  to  the  existence  of 
the  assets  and  a  discovery  were  wanted,  or  if  the  assets  were  not  of 
a  legal  nature,  or  if  a  marshalling  of  the  assets  were  indispensable  to 
a  due  payment  of  the  creditor's  claim,  it  is  obvious  that  the  remedy 
at  law  could  not  be  effectual.  But  there  might  be  other  interests 
injuriously  affected  by  the  judgment  of  a  court  of  common  law  in  a 
suit  by  a  creditor,  which  injury  that  court  could  not  redress  or  prevent, 
but  which  courts  of  equity  could  completely  redress  or  prevent. 

§  536.  In  the  next  place,  as  to  the  ecclesiastical  courts.  They 
had,  it  is  true,  an  ancient  jurisdiction  over  the  probate  of  wills  and 
the  granting  of  administrations ;  and,  as  incident  thereto,  an  authority 
to  enforce  the  payment  of  legacies  of  personal  property  (h).  But 
although  an  executor  or  administrator  was  compellable  by  statute  to 
account  before  the  Ordinary  or  Ecclesiastical  Judge,  yet  the  Ordinary 
might  waive  this  obligation  and  in  any  event  was  to  take  the  account 
as  given  in  by  the  executor  or  administrator,  and  could  not  oblige 
him  to  prove  the  items  of  it  or  to  swear  to  the  truth  of  it  (i). 

§  537.  The  statute  of  31  Edw.  3,  c.  11,  put  executors  and  ad- 
ministrators upon  the  same  footing  as  to  accounting  for  assets,  but 
it  in  no  manner  whatsoever  changed  the  mode  of  accounting  by  either 
of  them  (k).  A  legatee  might  falsify  the  account  of  an  executor  or 
administrator  in  the  spiritual  court,  as  might  also  the  next  of  kin, 
since  the  Statute  of  Distributions  of  22  &  23  Car.  2,  c.  10.  But  a 
creditor  of  the  estate  could  not  falsify  the  account  in  the  ecclesiastical 
court,  for  his  proper  remedy  was  held  to  be  at  the  common  law  (l). 
By  the  statute  of  21  Hen.  8,  c.  5,  s.  4,  executors  and  administrators 
were  bound  to  deliver  an  inventory  of  the  effects  of  the  deceased  upon 
oath  to  the  Ordinary.      But  the  inventory  could  not  be  controverted 

(h)  Black.  Coram.  494;  3  Black.  Coram.  98;  Bac.  Abr.  Legacies,  M. ;  2  Fonbl.  Eq. 
B.  4,  oh.  1,  §  1,  and  notes ;  Marriott  v.  Marriott,  1  Str.  666. 

(t)  2  Fonbl.  Bq.  B.  4,  oh.  3,  §  2,  and  note  (d);  Boone's  Case,  T.  Eaym.  470; 
Archbishop  of  Canterbury  v.  Wills,  X  Salk.  315. 

(ft)  2  Black.  Coram.  496;  4  Burns,  Bccles.  Law,  Wills,  Distribution,  Account,  viii. 
p.  368. 

(I)  Hinton  v.  Parker,  8  Mod.  168;  Gatchside  v.  Ovington,  3  Burr.  1922;  Arch- 
bishop of  Canterbury  v.  Wills,  1  Salk.  315. 


§    535 — 540.]  ADMINISTRATION.  229 

in  the  ecclesiastical  courts  by  a  creditor,  but  only  by  a  legatee  (m). 
Even  an  administration  bond  could  not  be  broken  by  an  omission  to 
pay  a  creditor's  debt;  but  it  was  a  security  merely  for  those  who  are 
interested  in  the  estate  (n).  Indeed,  before  the  Statute  of  Distribu- 
tions, it  was  a  matter  greatly  debated  whether  an  administrator 
could  be  compelled  to  make  any  distribution  of  an  intestate's  estate; 
and,  for  a  great  length  of  time,  it  was  held  that  an  executor  was  in 
all  cases  entitled  to  the  personal  estate  of  his  testator  not  disposed  of 
by  his  will  (o). 

§  538.  The  jurisdiction  of  the  ecclesiastical  courts  being  so  mani- 
festly defective  in  the  case  of  creditors,  resort  was  almost  necessarily 
had  to  courts  of  equity,  to  compel  a  discovery  of  assets  and  an  account. 
And  where  a  creditor  did  not  seek  a  general  settlement  of  the  estate 
by  a  suit  on  behalf  of  himself  and  all  other  creditors,  still,  he  was 
entitled  to  a  discovery  in  courts  of  equity,  to  enable  him  to  recover 
his  own  debt  in  an  action  at  law  (pj. 

§  539.  In  regard  to  legatees,  also,  the  remedy  was  in  many  casQS 
quite  as  defective.  No  remedy  lay  at  the  common  law  in  cases  of 
pecuniary  legacies  (g) ;  and  although  (as  has  been  stated)  a  remedy  did 
lie  in  the  spiritual  courts ;  yet,  in  a  great  variety  of  cases,  that  remedy 
was  insufficient  and  imperfect.  Thus,  if  payment  of  a  legacy  were 
pleaded  to  a  suit  in  the  ecclesiastical  courts,  and  there  was  but  one 
witness  of  the  fact  (which  the  ecclesiastical  courts  would  not  admit 
as  sufficient  proof,  for  their  law  required  two),  there  the  temporal 
courts  would  grant  a  prohibition  to  further  proceedings  (r).  So, 
formerly,  if  a  husband  should  sue  for  a  legacy  in  the  ecclesiastical 
courts,  the  Court  of  Chancery  would  prohibit  him;  because  the 
ecclesiastical  courts  could  not  compel  him  to  make  any  settlement  on 
his  wife  in  consideration  of  the  legacy  (s).  So,  if  a  legacy  were  due  to 
an  infant,  the  Court  of  Chancery  would  interfere,  at  the  instance  of 
the  executor,  and  prevent  the  spiritual  courts  from  proceeding, 
because  the  executor  might  be  entitled  to  a  bond  to  indemnify  him, 
and  to  a  refund  in  case  of  a  deficiency  of  assets  (t).  Many  other  cases 
might  be  put  of  a  like  nature. 

§  540.  But  a  stronger  instance  may  be  stated.  If  the  testator  did 
not  dispose  of  the  residue  of  his  estate;  and  yet,  from  the  circum- 


(m)  Hinton  v.  Parker,  8  Mod.  168;  Catchside  v.  Ovington,  3  Burr.  1922. 

(n)  Archbishop  of  Canterbury  v.  Wills,  1  Salk.  315;  Greenside  v.  Benson,  3Atk. 
248,  252;  Ashley  v.  BailUe,  2  Ves.  368;  Wallis  v.  Pipon,  Ambler  183;  Archbishop  of 
Canterbury  v.  House,  Cowp.  140;  Thomas  v.  Archbishop  of  Canterbury,  1  Cox  399. 

(o)  2  Black.  Comm.  514,  515 ;  Toller  on  Executors,  B.  3,  ch.  6,  p.  369. 

(p)  Com.  Dig.  Chancery,  2  C.  3;  id.  3,  B.  1,  2. 

(g)  Decks  v.  Strutt,  5  T.  E.  690. 

(r)  Bac.  Abr.  Legacy,  M. ;  3  Black.  Comm.  112. 

(s)  2  Fonbl.  Eq.  B.  4,  Pt.  1,  ch.  1,  §  2,  and  note  (d). 

(t)  Horrell  v.  Waldron,  1  Vern.  26;  Noel  v.  Robinson,  1  Vern.  91.  But  see 
Anon.,  1  Atk.  491;  Hawkins  v.  Day,  Ambler  162. 


230  KQUITY    JDRISPRUDENCE.  [CH.    IX. 

stances  of  the  will,  the  executor  was  plainly  not  entitled  to  the 
residue,  there  he  would  be  held  liable  to  distribute  it,  as  a  trustee  for 
the  next  of  kin.  But  the  spiritual  courts  had  no  jurisdiction  what- 
soever in  such  a  case  to  enforce  a  distribution;  for  trusts  were  not 
cognizable  in  those  courts,  and  could  not  be  enforced  by  them  (m). 
Even  in  the  common  case  of  a  legacy  of  personal  estate,  the  legacy 
does  not  vest  in  the  legatee  until  the  executor  assents  to  it ;  and  until  he 
assented,  it  could  not  be  sued  for  in  the  spiritual  courts.  But  courts  of 
equity  consider  the  executor  to  be  a  trustee  of  the  legatee,  and  will 
compel  him  to  assent  to  and  pay  the  legacy  as  a  matter  of  trust  (x). 
And  if  there  were  no  legal  assets  to  pay  a  legacy,  although  there  were 
ample  equitable  assets,  the  spiritual  courts  could  not  enforce  payment 
of  the  legacy;  for  they  had  no  jurisdiction  over  equitable  assets  (y). 

§  541.  In  cases  of  distribution  of  the  residue  of  estates,  the  remedy 
in  the  spiritual  courts  was  also,  on  other  accounts,  exceedingly 
defective :  for  those  courts  did  not  possess  any  adequate  means  for  a 
perfect  ascertainment  of  all  the  debts;  or  to  compel  a  payment  of 
them,  when  ascertained,  so  as  to  fix  the  precise  residuum ;  or  to  protect 
the  executor  or  administrator  in  his  administration,  according  to  their 
decree.  Besides,  the  interposition  of  a  court  of  equity  may  be  required 
for  many  other  purposes,  before  a  final  settlement  and  distribution 
of  the  estate;  as,  for  instance,  to  compel  an  executor  to  bring  the 
funds  into  court,  or  to  give  security  for  the  payment  of  debts,  legacies, 
and  distributive  shares,  where  there  is  danger  of  insolvency,  or  he  is 
wasting  the  assets,  or  where  the  debts,  legacies,  and  distributive  shares 
are  not  presently  payable,  or  payment  cannot  be  presently  enforced  (z). 

§  542.  The  jurisdiction  of  courts  of  equity  to  superintend  the 
administration  of  assets,  and  decree  a  distribution  of  the  residue,  after 
payment  of  all  debts  and  charges  among  the  parties  entitled  either  as 
legatees  or  as  distributees,  does  not  seem  to  have  been  thoroughly 
established  until  near  the  close  of  the  reign  of  Charles  II.  The 
objection  was  then  made  that  the  spiritual  courts  had  fuU.  authority, 
under  the  Statute  of  Distributions,  to  decree  a  distribution  of  the 
residue.  But  upon  a  demurrer  filed  to  a  bill  for  a  distribution,  it 
was  held,  by  the  Lord  Chancellor,  that,  there  being  no  negative 
words  in  the  Act  of  Parliament  (the  Statut«  of  Distributions),  the 
jurisdiction  of  the  Court  of  Chancery  was  not  taken  away;  for  the 
remedy  in  Chancery  was  more  complete  and  effectual  than  that  in  the 
spiritual  courts ;  or,  to  use  the  language  of  the  court  upon  that  occasion, 

{u)  Farnngton  v.  Knightley,  1  P.  Will.  645,  548. 

(x)  Wind  V.  Jekyll,  1  P.  Will.  672;  Attenborough  v.  Solomon,  1913,  A.  C.  76. 

(y)  Barker  v.  May,  9  B.  &  C.  489. 

(z)  Strange  v.  Harris,  3  Bro.  C.  C.  365;  Blake  v.  Blake,  2  Sch.  &  Lefr.  26,- 
Scott  V.  Becher,  4  Pri.  346:  Danby  v.  Danby,  5  Jur.  N.  S.  54;  In  re  Braithwaite, 
Braithwaite  v.  Wallis,  21  Ch.  D.  121. 


§    541 544.]  ADMINISTRATION.  231 

the  spiritual  court  in  that  case  had  but  a  lame  jurisdiction  (a).  And, 
although,  ordinarily,  in  cases  of  concurrent  jurisdiction,  the  decree 
of  the  court  first  having  possession  of  the  cause  is  held  conclusive ; 
yet  courts  of  chancery  have  not  held  themselves  bound  by  decrees 
of  the  spiritual  courts  in  cases  of  distribution,  from  their  supposed 
inability  to  do  entire  justice  (b). 

§  543.  By  the  Court  of  Probate  Act,  1857  (20  &  21  Vict.  c.  85), 
ss.  3,  4,  and  23,  the  jurisdiction  of  the  ecclesiastical  courts  over 
testamentary  matters  was  taken  away  and  transferred  to  the  Queen, 
to  be  exercised  by  a  Court  of  Probate  then  created;  but  it  was 
provided  that  no  suits  for  legacies  or  suits  for  the  distribution  of 
residues  should  be  entertained  by  that  court,  or  by  any  court  or  person 
whose  jurisdiction  as  to  matters  and  causes  testamentary  was 
abolished.  The  immediate  effect  of  this  statute  was  to  confer  an 
exclusive  jurisdiction  upon  the  Court  of  Chancery  to  settle  the  ad- 
ministration of  estates,  and  this  jurisdiction  was  transferred  to  the 
Chancery  Division  of  the  High  Court  by  the  Judicature  Act,  1873 
(36  &  37  Vict.  c.  66).  There  is  now  a  general  concurrent  jurisdiction 
in  the  Court  of  Bankruptcy  (c),  and  a  limited  concurrent  jurisdiction 
in  the  County  Court  (d). 

§  544.  The  application  for  aid  and  relief  in  the  administration  of 
estates  is  sometimes  made  by  the  executor  or  administrator  himself, 
when  he  finds  the  affairs  of  his  testator  or  intestate  so  much  involved 
that  he  cannot  safely  administer  the  estate  except  under  the  direction 
of  a  court  of  equity.  In  such  a  case  it  is  competent  for  him  to 
institute  a  suit  against  the  creditors  generally,  for  the  purpose  of 
having  all  their  claims  adjusted,  and  a  final  decree  settling  the  order 
and  payment  of  the  assets  (e).  These  used  to  be  called  bills  of  con- 
formity (probably  because  the  executor  or  administrator  in  such  case 
undertook  to  conform  to  the  decree,  or  the  creditors  were  compelled  by 
the  decree  to  conform  thereto) ;  and  they  were  not  encouraged,  because 
they  had  a  tendency  to  take  away  the  legal  preference  which  one 
creditor  might  gain  over  another  by  his  diligence.  Besides,  it  was 
said  that  these  bills  might  be  made  use  of  by  executors  and  ad- 
ministrators to  keep  creditors  out  of  their  money  longer  than  they 
otherwise  would  be  (/).  However  correct  these  reasons  may  be  for  a 
refusal  to  interfere  in  ordinary  cases  involving  no  difficulty,  they  are 
not  sufficient  to  show  that  the  court  ought  not  to  interfere  in  behalf 

(a)  Matthews  v.  Newby,  1  Vern.  133;  Howard  v.  Howard,  1  Vern.  134;  Buede 
v.  Atleo,  2  Vern.  37 ;  Petit  v.  Smith,  1  P.  Will.  7,  1  Mad.  Pr.  Ch.  467. 
(6)  See  Bissell  v.  Axtell,  2  Vern.  47,  and  Mr.  Eaithby's  note. 

(c)  In  r£  Baker,  Nicholls  v.  Baker,  44  Ch.  D.  262. 

(d)  County  Court  Act,  1888  (51  &  52  Vict.  c.  43),  s.  67. 

(e)  Com.  Dig.  Chancery,  3  G.  6 ;  Buccle  v.  Atleo,  2  Vern.  37. 
(/)  Morrice  v.  Bank  of  England,  Cas.  temp.  Talb.  224. 


232  EQUITY   JURISPBUDENCE.  [CH.    IX. 

of  an  executor  or  administrator  under  special  circumstances  where 
injustice  to  himself  or  injury  to  the  estate  may  otherwise  arise  (g). 

§  545.  A  doubt  was,  indeed,  suggested  whether  a  bill  could  be 
maintained  against  all  the  creditors  (h).  But  if  the  bill  was  brought 
against  certain  known  creditors  who  were  proceeding  at  law,  it  may  be 
asked.  What  was  the  difficulty  of  proceeding  in  the  same  way  as  was 
done  as  to  all  creditors,  upon  a  bill  brought  by  one  or  more  creditors 
in  behalf  of  themselves  and  all  other  creditors?  Upon,  a  decree  for 
the  executor  or  administrator  to  account,  all  the  creditors  were  or 
might  be  required  to  present  and  prove  their  debts  before  the  master 
in  the  one  case  as  in  the  other.  But  upon  such  a  biU,  brought  by  an 
executor  or  administrator,  the  court  would  not  formerly  interpose,  by 
way  of  injunction,  to  prohibit  creditors  proceeding  at  law,  until  there 
had  been  a  decree  against  the  executor  or  administrator  to  account 
in  that  suit;  for,  otherwise,  the  latter  might  without  reason  make  it 
a  ground  of  undue  delay  of  the  creditors  (i). 

§  545a.  A  bill  might  also  be  maintained  by  personal  representa- 
tives for  a  discovery  of  assets  belonging  to  the  deceased  (k). 

§  546.  But  the  more  ordinary  case  of  relief,  sought  in  equity  in 
cases  of  administration,  is  by  creditors.  A  single  creditor  may  proceed 
for  payment  of  his  own  debt,  and  seek  a  discovery  of  assets  for  this 
purpose  only  (l).  It  he  does  so,  and  the  proceedings  are  mdntainable, 
the  court  does  not  decree  a  general  account  of  debts ;  but  the  common 
course  is  to  direct  an  account  of  the  personal  estate,  and  of  that 
particular  debt  which  is  ordered  to  be  paid  in  the  due  course  of 
administration  (m).  If  the  debt  is  admitted  or  proved,  and  the  personal 
representative  admits  assets,  the  creditor  takes  an  order  for  immediate 
payment,  and  there  is  no  necessity  for  a  judgment  for  administration 
or  for  accounts  and  enquiries  (n). 

§  547.  The  more  usual  course,  however,  pursued  in  the  case  of 
creditors,  was  for  one  or  more  creditors  to  file  a  bill  (commonly  called 
a  creditors'  biU)  by  and  on  behalf  of  him,  or  themselves,  and  all  other 
creditors  who  should  come  under  the  decree,  for  an  account  of  the 
assets  and  a  due  settlement  of  the  estate  (o).  And  this  applies  as  well 
when  the  party  suing  is  a  creditor  whose  debt  is  payable  in  presenti, 
as  when  his  debt  is  due  in  juturo,  if  it  be  debitum  i>i  presenti,  solven- 
dum  in  juturo  (p) ;  and  whether  he  has  a  mortgage  or  not  (g).    Bills  of 

(g)  Com.  Dig.  Chancery,  3  G.  6. 

Oi)  Rush  V.  Higgs,  i  Ves.  Jun.  638,  643.  (t)  Ibid. 

(fc)  Wright  v.  Bluck,  1  Vern.  106.     See  Walsh  v.  Stoddart.  i  Dr.  and  War.  159. 
(!)  Dulwich  College  v.  Johnson,  2  Vern.  49. 

(to)  Monice  v.  Bank  of  England,  Gas.  temp.  Talb.  217;  Perry  v.  Phelips,  10 
Vea.  38. 

(n)  Woodgate  v.  Field,  2  Hare,  211. 

(o)  See  the  case  of  The  Creditors  of  Sir  Charles  Cox,  3  P.  Will.  343. 

(p)  Whitmore  v.  Oxborrow,  2  Y.  &  C,  Ch.  13. 

(g)  Greenwood  v.  Firth,  2  Hare  241,  note;  Aldridge  v.  Westbrook,  5  Beav.  138. 


§  545 — 548a.]  administration.  233 

this  sort  have  been  allowed  upon  the  mere  principle  that,  as  executors 
and  administrators  have  vast  powers  of  preference  at  law,  courts  of 
equity  ought,  upon  the  principle  that  equality  is  equity,  to  interpose 
upon  the  application  of  any  creditor  by  such  a  bill,  to  secure  a 
distribution  of  the  assets  without  preference  to  any  one  or  more 
creditors  (r).  And  as  a  decree  in  equity  is  held  of  equal  dignity  and 
importance  with  a  judgment  at  law,  a  decree  upon  a  bill  of  this 
sort,  being  for  the  benefit  of  all  creditors,  makes  them  all  creditors 
by  decree  upon  aji  equality  with  creditors  by  judgment,  so  as  to 
exclude,  from  the  time  of  such  decree,  all  preferences  in  favour  of  the 
latter  (s). 

§  548.  The  usual  decree,  in  the  case  of  creditors'  bills  against  the 
executor  or  administrator,  is  (as  it  is  commonly  phrased)  quod 
computet,  that  is  to  say,  it  directs  the  master  to  take  the  accounts 
between  the  deceased  and  all  his  creditors;  and  to  cause  the  creditors, 
upon  due  public  notice,  to  come  before  him  to  prove  their  debts,  at  a 
certain  place,  and  within  a  limited  period;  and  it  also  directs  the 
master  to  take  an  account  of  all  the  personal  estaiie  of  the  deceased 
in  the  hands  of  the  executor  or  administrator,  and  the  same  to  be 
applied  in  payment  of  the  debts  and  other  charges,  in  a  due  course 
of  administration  (t).  In  all  cases  of  this  sort,  any  person  interested  in 
estate  as  beneficiary  or  creditor  is  entitled  to  appear  before  the  master, 
and  may  there,  if  he  chooses,  contest  the  claim  of  any  other  person 
claiming  to  be  a  creditor,  in  the  same  manner  as  if  it  were  an 
adversary  suit  (u). 

§  548a..  Under  the  practice  introduced  by  the  Eules  of  the  Supreme 
Court  1883,  0.  LV.,  r.  4,  it  is  usual  to  apply  for  administration  of 
the  real  and  personal  estate  of  a  deceased  person  by  a  summons 
designated  an  originating  summons,  and  if  the  plaintiS  resorts  to  a 
writ  he  may  be  visited  with  the  increased  costs  of  choosing  the 
more  expensive  remedy  (x).  And  in  matters-  within  the  jurisdiction 
of  the  County  Court,  should  resort  to  that  tribunal  at  the  risk  of  being 
under  the  life  penalty  (y).  There  is  no  reason  why  the  Bankruptcy 
Court  should  be  resorted  to  in  preference  to  the  High  Court  (a).  The 
persons  entitled  to  sue  out  a  summons  for  administration  in  the 
High   Court   are,    by    Order  LV.,    rules   3    &   4,    the    executors   and 

(r)  Rush  v.  Higgs,  i  Ves.  Jun.  638,  643;  Gilpin  v.  Lady  Southampton,  18  Ves. 
469. 

(s)  Morrice  v.  Bank  of  England,  Cas.  temp.  Talb.  217 ;  Perry  v.  Phelips,  10  Ves. 
38,  39,  40;  Brooks  v.  Reynolds,  1  Bro.  C.  C.  183;  Paxton  v.  Douglas,  8  Ves.  520. 

(t)  The  Creditors  of  Sir  Charles  Cox,  3  P.  Will.  343. 

(m)  Shewen  v.  Vanderhorst,  1  Euss.  &  M.  347;  Fuller  v.  Redman,  26  Beav.  614; 
Moodie  v.  Bannister,  4  Drew.  482,  In  re  Wenham,  Hunt  v.  Wenham  [1892]  8  Ch. 
59 ;  Midgley  v.  Midgley  [1898]  3  Ch.  282. 

(x)  In  re  Johnson,  Wragg  v.  Shand,  53  L.  T.  136;  In  re  Francke,  Drake 
v.  Francke,  57  L.  J.  Ch.  437. 

(y)  See  Browne  v.  Rye,  L.  E.  16  Eq.  343;  Crozier  v.  Dowsett,  31  Ch.  D.  67. 

(z)  In  re  Baker,  Nichols  v.  Baker,  44  Ch.  D.  262. 


234  EQUITY    JURISPEUDENCE.  [CH.    IX. 

administrators  of  a  deceased  person,  or  a  creditor,  devisee,  legat-ee, 
next  of  kin,  or  heir  at  law  of  a  deceased  person. 

§  549.  As  soon  as  the  decree  to  account  was  made  in  such  a  suit, 
brought  in  behalf  of  all  the  creditors,  and  not  before,  the  executor  or 
administrator  was,  before  the  Judicature  Act,  1873,  entitled  to  an 
injxmction  out  of  Chancery,  to  prevent  any  of  the  creditors  from 
suing  him  at  law,  or  proceeding  in  any  suits  already  commenced, 
except  under  the  direction  and  control  of  the  court  of  equity,  where 
the  decree  was  passed  (a).  The  object  of  the  court,  under  such  circum- 
stances, was  to  compel  all  the  creditors  to  come  in  and  prove  their 
debts  before  the  master;  and  to  have  the  proper  payments  and 
discharges  made  under  the  authority  of  the  court;  so  that  the  executor 
or  administrator  might  not  be  harassed  by  multiplicity  of  suits,  or 
a  race  of  diligence  be  encouraged  between  different  creditors,  each 
striving  for  an  undue  mastery  and  preference.  And  this  action  of 
the  court  presupposed,  that  all  the  legal  rights  of  every  creditor,  and 
the  validity  of  his  debt,  might  be,  and,  indeed,  must  be,  determined 
in  equity,  upon  the  same  principles  as  it  would  be  at  law  (b).  But,  in 
order  to  prevent  any  abuse  of  such  bills,  by  connivance  between  an 
executor  or  administrator  and  a  creditor,  it  was  a  common  practice 
to  grant  an  injunction  only,  when  the  answer  or  afi&davit  of  the 
executor  or  administrator  stated  the  amount  of  the  assets,  and  upon 
the  terms  of  his  bringing  the  assets  into  court,  or  obeying  such  other 
order  of  the  court,  as  the  circumstances  of  the  case  might  require  (c). 
The  same  remedial  justice  was  applied,  where  the  application,  instead 
of  being  made  by  creditors,  was  made  by  legatees  or  trustees  (d). 
Now  by  the  Judicature  Act,  1873,  s.  24,  sub-s.  5,  the  same  result  would 
be  obtained  by  an  application  to  the  court  in  which  the  creditor  is 
suing,  to  stay  proceedings  on  the  ground  that  an  administration  action 
is  pending  in  the  Chancery  Division;  or  by  a  counter-claim  for  ad- 
ministration followed  by  an  application  for  a  transfer  of  the  action  to 
the  Chancery  Division. 

§  550.  The  considerations  already  mentioned  apply  to  cases  where 
the  assets  are  purely  of  a  legal  nature ;  and  no  peculiar  circumstances 
require  the  interposition  of  courts  of  equity,  except  those  appertaining 
to  the  necessity  of  taking  an  account,  and  having  a  discovery,  and 
decreeing  a  final  settlement  of  the  estate.  But  in  a  great  variety  of 
cases,  the  jurisdiction  of  courts  of  equity  became  indispensable,  from 
the  fact,  that  no  other  courts  possessed  any  adequate  jurisdiction  to 

(o)  Morrice  v.  Bank  of  England,  Cas.  temp.  Talb.  217;  Brooks  v.  Reynolds,  1 
Bro.  C.  C.  183,  and  Mr.  Belt's  note;  Clarke  v.  Earl  of  Ormonde,  Jac.  122;  In  re 
Roberts,  Fowler  v.  Roberts,  2  Giff.  226;  Marriage  v.  Skiggs,  4  De  G.  &  J    4. 

(b)  Whitaker  v.  Wright,  2  Hare  310. 

(c)  Gilpin  V.  Lady  Southampton,  18  Ves.  469;  Clarke  v.  Earl  of  Ormonde,  Jac. 
122;  Lee  v.  Park,  1  Keen  714;  Mitford,  Plead,  by  Jeremy  311. 

(d)  Brooks  v.  Reynolds,  1  Bro.  C.  C.  183;  Perry  v.  Phelips,  10  Ves.  38;  Jackson 
V.  Leap,  1  J.  &  W.  231  and  note. 


§    549 552.]  ADMINISTRATION.  235 

reach  the  entire  merits,  or  dispose  of  the  entire  merits.  This  was 
necessarily  the  case  where  there  were  equitable  assets  as  well  as  legal 
assets,  and,  also,  where  the  assets  were  required  to  be  marshalled, 
in  order  to  a  full  and  perfect  administration  of  the  estate,  and  to 
prevent  any  creditor,  legatee,  or  distributee  from  being  deprived  of 
his  own  proper  benefit,  by  reason  of  any  prior  claims  which  might 
obstruct  it. 

§  551.  And,  first,  in  relation  to  equitable  assets.  That  portion 
only  of  the  assets  of  the  deceased  party  are  deemed  legal  assets 
which  by  law  are  directly  hable,  in  the  hands  of  his  executor  or 
administrator,  to  the  payment  of  debts  and  legacies.  It  is  not  within 
the  design  of  these  Commentaries  to  enter  into  a  minute  examination 
of  what  are  deemed  legal  assets.  But,  generally  speaking,  they  may 
be  defined  as  assets  which  come  into  the  hands  and  power  of  an 
executor  or  administrator,  or  such  as  he  is  entrusted  with  by  law, 
virtute  officii,  to  dispose  of  in  the  course  of  administration.  In  other 
words,  whatever  an  executor  or  administrator  takes  qua  executor 
or  administrator,  or  in  respect  to  his  office,  or  which  he  can  recover 
in  any  court  of  equity  as  well  as  of  law,  is  to  be  considered  as  legal 
assets  (e). 

§  552.  Equitable  assets  are,  on  the  other  hand,  aU  assets  which 
are  chargeable  with  the  payment  of  debts  or  legacies  in  equity ;  and 
which  do  not  fall  under  the  description  of  legal  assets.  They  are 
called  equitable  assets,  because  the  creditor  of  the  deceased  could 
formerly  only  obtain  payment  out  of  them,  by  the  aid  and  instrumen- 
tality of  a  court  of  equity  (/).  They  are  also  called  equitable  for 
another  reason;  and  that  is,  that  the  rules  of  distribution  by  which 
they  are  governed  are  different  from  those  of  the  distribution  of  legal 
assets  {g).  In  general,  it  may  be  said,  that  equitable  assets  are  of 
two  kinds;  the  first  is,  where  assets  are  created  such  by  the  intent 
of  the  party;  the  second  is,  where  they  result  from  the  nature  of  the 
estate  made  chargeable.  Thus,  for  instance,  if  a  testator  devises  land 
to  trustees,  to  sell  for  the  payment  of  debts,  the  assets  resulting  from 
the  execution  of  the  trust,  are  equitable  assets  upon  the  plain  intent 
of  the  testator,  notwithstanding  the  trustees  are  also  made  his 
executors,  for,  by  directing  the  sale 'to  be  for  the  payment  of  debts 
generally,  he  excludes  all  preferences,  and  the  property  would  not 
before  the  Administration  of  Estates  Act,  1833  (3  &  4  Will.  4,  c.  104), 
otherwise  have  been  liable  to  the  payment  of  simple  contract  debts  {h). 
The  same  principle  applies,  if  the  testator  merely  charges  his  lands 

(e)  Cook  V.  Gregson,  3  Drew.  547;  Christy  v.  Courtenay,  26  Beav.  140;  AU.-Gen, 
V.  Brunning,  8  H.  L.  C.  258. 

(/)  In  re  Power,  Acworth  v.  Storie  [1901],  2  Ch.  665. 

(g)  Talbot  v.  Frere,  8  Ch.  D.  568;  Walters  v.  Walters,  18  Ch.  D.  182. 

(/i)  Newton  v.  Bennet,  1  Bro.  C.  C.  135;  Silk  v.  Prime,  1  Bro.  C.  C.  138,  noter 
Clay  V.  Willis,  1  B.  &  C.  364;  Barker  v  May,  9  B.  &  C.  489;  Bain  v.  Sadler,  L.  E. 
12  Eq.  570. 


236  EQUITY    JURISPRUDENCE.  [CH.    IX. 

with  the  payment  of  his  debts  (0-  On  the  other  hand,  if  the  estate 
be  of  an  equitable  nature,  and  be  chargeable  with  debts,  the  fund  is 
to  be  deemed  equitable  assets,  unless  by  some  statute  it  is  expressly 
made  legal  assets;  for  it  cannot  be  reached  except  through  the 
instrumentality  of  a  court  of  equity.  And  it  may  be  laid  down  as  a 
general  principle,  that  everything  is  considered  as  equitable  Eissets, 
which  the  debtor  has  made  subject  to  his  debts  generally,  and  which, 
without  his  act,  would  not  have  been  subject  to  the  payment  of  his 
debts  generally  (fe). 

§  553.  In  the  course  of  the  administration  of  assets,  courts  of 
■equity  followed  the  same  rules  in  regard  to  legal  assets,  which  were 
formerly  adopted  by  courts  of  law;  and  gave  the  same  priority  to  the 
different  classes  of  creditors,  which  was  enjoyed  at  law;  thus  main- 
taining a  practical  exposition  of  the  maxim,  Mquitas  sequitur  legem  (I). 
In  the  like  manner,  courts  of  equity  recognized  and  enforced  all  ante- 
cedent liens,  claims,  and  charges  in  rem,  existing  upon  the  property 
according  to  their  priorities;  whether  these  charges  were  of  a  legal  or 
of  an  equitable  nature,  and  whether  the  assets  were  legal  or  equit- 
able (m).  One  of  these  priorities  was  that  enjoyed  by  specialty 
creditors  over  creditors  by  simple  contract  which  was  abolished  as  from 
January  1,  1870,  by  the  Administration  of  Estates  Act,  1869  (32  & 
33  Vict.  c.  46),  sometimes  still  called  Hinde  Palmer's  Act.  This 
■statute  expressly  preserves  the  full  force  of  any  lien,  charge,  or  other 
security  which  any  creditor  may  hold  or  be  entitled  to  for  the  payment 
of  his  debt. 

§  554.  But  in  regard  to  equitable  assets  (subject  to  the  exception 
already  stated),  courts  of  equity,  in  the  actual  administration  of  them, 
adopted  very  different  rules  from  those  formerly  adopted  in  courts  of 
law  in  the  administration  of  legal  assets.  Thus,  in  equity,  it  was  and 
is  a  general  rule  that  equitable  assets  shall  be  distributed  equally,  and 
■pari  passu,  among  all  the  creditors,  without  any  reference  to  the 
priority  or  dignity  of  the  debts;  for  courts  of  equity  regard  all  debts 
in  conscience  as  equal  jure  naturali,  and  equally  entitled  to  be  paid; 
and  here  they  follow  their  own  favourite  maxim  that  equality  is  equity ; 
JEquitas  est  quasi  sequalitas.  And  if  the  fund  falls  short,  all  the 
creditors  are  required  to  abate  in  proportion  (n). 

§  554a.  The  rules  which  the  Court  of  Chancery  applied  in  the 
administration  of  .estates  were  part  of  the  lex  fori,  and  priorities  were 
determined  according  to  the  English  law,   and  not  according  to  that 

(i)  Silk  v.  Prime,  1  Bro.  C.  C.  138  n. ;  Price  v.  North,  1  Ph.  85. 

(k)  Silk  V.  Prime,  1  Bro.  C.  C.  138  n. 

(l)  Att.-Gen.  v.  Brunning,  8  H.  L.  C.  258;  Morrice  v.  Bank  of  England,  Cas. 
•temp.  Talb.  220,  221. 

(m)  Freemoult  v.  Dedire,  1  P.  Wms.  429;  Pope  v.  Gwinn,  8  Ves.  28,  note. 

(n)  Creditors  of  Sir  Charles  Cox,  3  P.  Wins.  343;  In  re  Poole,  Thompson  v.  Ben- 
net,  6  Ch.  D.  739. 


§    553 555.]  ADMINISTKATION.  237 

of  the  law  of  the  country  where  an  obligation  was  incurred  (o),  but  the 
court  gave  full  effect  to  charges  upon  property  created  by  a  contract 
entered  into  outside  its  jurisdiction  (p).  A  secured  creditor  formerly 
possessed  the  right  of  realizing  his  security,  and  proving  for  the  whole 
debt  in  competition  with  the  unsecured  creditors,  not  receiving  in  the 
result  more  than  20s.  in  the  £1.  In  the  case  of  an  insolvent  estate 
this  worked  what  was  deemed  a  serious  injustice  to  the  unsecured 
creditors,  and  has  been  altered  by  the  introduction  of  the  bankruptcy 
rule  by  the  Judicature  Act,  1878  (86  &  37  Vict.  c.  66),  s.  10.  The 
secured  creditor  where  the  estate  is  insolvent  must  now  adopt  one  of 
four  courses,  (1)  rely  entirely  on  his  security ;  or  (2)  reahze  his  security 
and  prove  for  the  balance ;  or  (8)  value  his  security  and  prove  for  the 
balance ;  or  (4)  surrender  his  security  and  prove  for  the  whole  debt.  If 
he  adopts  courses  (1)  or  (3)  his  security  may  be  redeemed  at  the  face 
value  or  the  assessed  value  as  the  case  may  be,  and  in  the  latter  event 
subject  to  the  right  of  the  creditor  to  amend  his  valuation  in  the  event 
of  a  clear  mistake  or  a  change  of  circumstances,  unless  he  has  accept'ed 
payment  (q). 

§  555.  It  frequently  happens,  also,  that  lands  and  other  property, 
not  strictly  legal  assets,  are  charged,  not  only  with  the  payment  of 
debts,  but  also  with  the  payment  of  legacies.  In  that  case,  all  the 
legatees  take  pari  passu;  and  if  the  equitable  assets  (after  payment 
of  the  debts)  are  not  sufficient  to  pay  all  the  legacies,  the  legatees  are 
all  required  to  abate  in  proportion,  unless  some  priority  is  specially 
given  by  the  testator  to  particular  legatees;  for,  prima  facie,  the 
testator  must  be  presumed  to  have  considered  that  he  had  assets 
sufficient  to  answer  all  the  legacies  and  to  intend  that  all  his  legacies- 
shall  be  equally  paid  (r).  But  suppose  the  case  to  be,  that  the  equit- 
able assets  are  sufficient  to  pay  all  the  debts ;  but,  after  such  payment' 
not  sufficient  to  pay  any  of  the  legacies;  and  the  property  is  charged 
with  the  payment  of  both  debts  and  legacies.  In  such  a  conflict  of 
rights,  the  question  must  arise,  whether  the  creditors  and  legatees  are 
to  share  in  proportion,  pari  passu;  or  the  creditors  are  to  enjoy  a 
priority  of  satisfaction  out  of  the  equitable  assets.  This  was  formerly 
a  matter  of  no  inconsiderable  doubt ;  and  it  was  contended  with  much- 
apparent  strength  of  reasoning  that,  as  both  creditors  and  legatees, 
in  such  a  case,  take  out  of  the  fund  by  the  bounty  of  the  testator, 
and  not  of  strict  right,  they. ought  to  share  in  proportion,  pari  passu. 
After  some  struggle  in  the  courts  of  equity  upon  this  point,  it  was  at 

(o)  Pardo  v.  Bingham,  L.  B.  6  Eq.  485. 

(p)  In  re  de  Nicols,  de  Nicols  v.  Curlier,  [1900]  2  Ch.  410.  See  Lashley  v.  Hog,  2' 
Coop.  t.  Cott,  449. 

(q)  See  Exp.  Drake,  In  re  Ware,  5  Ch.  D.  866;  Gouldery  v.  Bartrum,  19  Ch.  D. 
394;  Exp.  Norris,  In  re  Sadler,  17  Q.  B.  D.  728;  Exp.  Nat.  Prov.  Bk.  of  England,. 
In  re  Newton  [1896]  2  Q.  B.  403. 

(r)  Beeston  v.  Booth,  4  Mad.  161 ;  Thwaites  v.  Foreman,  1  Coll.  409;  affd.  10  Jur. 
483 ;  In  re  Harris,  Harris  v.  Harris,  [1912]  2  Ch.  241. 


238  EQUITY    JURISPRUDENCE.  [CH.    IX. 

length  settled  that,  although  as  between  themselves,  in  regard  to 
equitable  assets,  the  creditors- are  all  equal,  and  are  to  share  in  propor- 
tion, pari  passu;  yet,  as  between  them  and  legatees,  the  creditors  are 
entitled  to  a  priority  and  preference ;  and  that  legatees  can  take  nothing 
until  the  debts  are  all  paid  (s). 

§  556.  The  ground  of  this  decision  was,  that  it  is  the  duty  of  every 
man  to  be  just  before  he  is  generous;  and  no  one  can  well  doubt  the 
moral  obligation  of  any  man  to  provide  for  the  payment  of  all  his 
debts.  The  presumption,  therefore,  in  the  absence  of  all  other  words, 
showing  a  different  intent  (which  intent  would,  however,  no  longer 
prevail),  was,  and  is,  that  a  testator  means  to  provide  first,  for  the 
discharge  of  his  moral  duties,  and  next,  for  the  objects  of  his  bounty, 
and  not  to  confound  the  one  with  the  other.  For,  otherwise,  the 
testator  would,  in  truth,  and  in  foro  conscientise ,  be  disposing  of 
another's  property,  and  not  making  gifts  ultra  ses  alienum.  The  good 
sense  of  this  latter  reasoning  can  scarcely  escape  observation.  It 
proceeds  upon  the  just  and  benignant  interpretation  of  the  intention 
of  the  party  to  fulfil  his  moral  obligations  in  the  just  order  which 
natural  law  would  assign  to  them. 

§  557.  In  cases  where  the  assets  were  partly  legal,  and  partly 
equitable,  courts  of  equity  would  not  interfere  to  take  away  the  legal 
preference  of  any  creditors  to  the  legal  assets.  But,  if  any  creditor 
had  been  partly  paid  out  of  the  legal  assets  by  insisting  on  his 
preference,  and  he  sought  satisfaction  of  the  residue  of  his  debt  out 
of  the  equitable  assets,  he  would  be  postponed,  till  all  the  other 
creditors,  not  possessing  such  a  preference,  had  received  out  of  such 
equitable  assets  an  equal  proportion  of  their  respective  debts  (t).  This 
doctrine  is  founded  upon  and  flows  from  that  which  we  have  been 
already  considering,  that  in  natural  justice  and  conscience  aU  debts 
are  equal;  that  the  debtor  himself  is  equally  bound  to  satisfy  them  all; 
and  that  equality  is  equity.  When,  therefore,  a  court  of  equity  was 
called  upon  to  assist  a  creditor,  it  had  a  right  to  insist,  before  relief 
was  granted,  that  he  who  seeks  equity  shall  do  equity ;  that  he  should 
not  make  use  of  the  law  in  his  own  favour  to  exclude  equity ;  and  at 
the  same  time  insist  that  equity  should  aid  the  defects  of  the  law,  to 
the  injury  of  equally  meritorious  claimants.  The  usual  decree  in  cases 
of  this  sort  was,  that  the  creditor  who  had  exhausted  (or  should 
exhaust)  any  part  of  the  testator's  estate  in  satisfaction  of  his  debts, 
should  not  come  upon  or  receive  any  further  satisfaction  out  of  the 
residue  of  the  testator's  estate  (or  the  equitable  assets)  until  the  other 
creditors  should  thereout  be  made  up  equal  with  him  (u).  This  is 
sometimes  called  marshalling  the   assets;   but  that  appellation  more 

(s)  Walker  v.  Meager,  2  P.  Wms.  560;  Kidney  v.  Coussmaker,  12  Ves.  136. 
(t)  Chapman  v.  Esqar,  1  Sm.  &  G.  575 ;  Bain  v.  Sadler,  L.  E.  12  Eq.  570. 
(«)  See  Aldrich  v.  Cooper,  8  Ves.  382. 


§    556 — 559.]  ADMINISTRATION.  239 

appropriately  belongs  (as  we  shall  immediately  see)  to  another  mode 
of  equitable  interference.  The  present  is  rather  an  exercise  of  equit- 
able jurisdiction  in  refusing  relief,  unless  upon  the  terms  of  doing 
equity. 

§  558.  In  the  next  place,  as  to  marshalling  assets  (strictly  so  called) 
in  the  course  of  the  administration  (x).  In  the  sense  of  the  lexi- 
cographers, to  marshal,  is  to  arrange  or  rank  in  order ;  and  in  this  sense, 
the  marshalling  of  assets  would  be,  to  arrange  or  rank  assets  in  the 
due  order  of  administration.  This  primary  sense  of  the  language  has 
been  transferred  into  the  vocabulary  of  courts  of  equity ;  and  has  there 
received  a  somewhat  peculiar  and  technical  sense,  although  still 
germane  to  its  original  signification.  In  the  sense  of  the  courts  of 
equity,  the  marshalling  of  assets  is  such  an  arrangement  of  the  difEerent 
funds  under  administration  as  shall  enable  all  the  parties,  having 
equities  thereon,  to  receive  their  due  proportions,  notwithstanding  any 
intervening  interests,  liens,  or  other  claims  of  particular  persons  to 
prior  satisfaction,  out  of  a  portion  of  these  fimds.  THius,  where  there 
exist  two  or  more  funds,  and  there  are  several  claimants  against  them, 
and  at  law  one  of  the  parties  may  resort  to  either  fund  for  satisfaction, 
but  the  others  can  come  upon  one  only ;  there,  courts  of  equity  exercise 
the  authority  to  marshal  (as  it  is  called)  the  funds,  and  by  this  means 
enable  the  parties  whose  remedy  at  law  is-  confined  to  one  fund  only, 
to  receive  due  satisfaction  (y).  The  general  principle  upon  which 
t  courts  of  equity  interfere  in  these  cases  is,  that,  without  such  inter- 
ference, he  who  had  a  title  to  the  double  fund  would  possess  £Ui 
uni'easonable  power  of  defeating  the  claimants  upon  either  fund,  by 
taking  his  satisfaction  out  of  the  other,  to  the  exclusion  of  them.  So 
that,  in  fact,  it  would  be  entirely  in  his  election,  whether  they  should 
receive  any  satisfaction  or  not.  Now,  courts  of  equity  treat  such  an 
exercise  of  power  as  wholly  unjust  and  unconscientious;  and  therefore 
will  interfere,  not,  indeed,  to  modify  or  absolutely  to  destroy  the  power, 
but  to  prevent  it  from  being  made  an  instrument  of  caprice,  injustice, 
or  imposition.  Equity,  it  affording  redress  in  such  cases,  does  little 
more  than  apply  the  maxim.  Nemo  ex  alterius  detrimento  fieri  debet 
locupletior  (z). 

§  559.  And  this  principle  is  by  no  means  confined  to  the  adminis- 
tration of  assets;  but  it  is  applied  to  a  vast  variety  of  other  cases  (as 
we  shall  hereafter  see);  as,  for  instance,  to  cases  of  two  mortgages 
where  one  covers  two  estates,  and  the  other  but  one ;  to  cases  of  extents 
by  the  Crown;  and,  indeed,  to  cases  of  double  securities  generally  (a). 
It  may  be  laid  down  as  the  general  rule  of  the  courts  of  equity  in  cases 
of  this  sort,  that,  if  a  creditor  has  two  funds,  and  in  the  exercise  of 

(x)  Post,  §  §  633  to  643. 

(y)  Aldrich  v.  Cooper,  8  Ves.  382;  In  re  Cornwall,  3  Dru.  &  War.  173. 
(z)  See  Mills  v.  Eden,  10  Mod.  499;  ante,  §§  327,  499;  post,  §§  633  to  642. 
(a)  Aldrich  v.  Cooper,  8  Ves.  382;  In  re  Cornwall,  3  Dra.  &  War.  173. 


240  EQUITY  JURISPRUDENCE.  [OH.    IX. 

his  undoubted  right  pursues  his  remedy  against  one  or  other  of  his 
securities,  a  creditor  with  a  security  over  one  of  the  funds  shall  be- 
compensated  to  the  extent  to  which  he  has  been  disappointed  by  the 
election  of  the  other  creditor  (&).  The  rule  has  been  extended  to  the 
case  of  other  persons  standing  in  a  similar  predicament.  Where  a 
person  mortgages  two  properties  to  secure  one  and  the  same  sum  of 
money,  and  afterwards  devises  them  to  different  beneficiaries,  the 
charges  are  apportioned  upon  the  properties  according  to  their  respec- 
tive values,  and  the  beneficiary  who  pays  more  than  the  apportioned 
part  may  recover  the  excess  from  the  other  beneficiary,  unless  it  clearly 
appear  that  the  parties  have  agreed  that  the  properties  shall  stand 
security  in  specific  order  (c).  So  where  an  agent  mortgaged  property 
of  his  principal  for  his  personal  debt  in  excess  of  his  authority,  and 
the  mortgagee  enforced  his  right  to  repayment  against  the  principal's 
property,  the  principal  was  held  entitled  to  enforce  against  the  property 
of  the  agent  liberated  by  this  act  of  the  mortgagee  so  much  of  the 
sum  advanced  by  the  mortgagee  as  exceeded  that  which  the  agent  was 
authorized  to  raise  (d).  The  rule  is  applicable  whether  the  properties 
mortgaged  be  land  (e),  or  personalty  (/),  or  partly  one  and  partly  the 
other  (g). 

§  560.  But,  although  the  rule  is  so  general,  yet  it  is  not  to  be 
understood  without  some  qualifications.  It  is  never  applied  except 
where  it  can  be  done  without  injustice  to  the  creditor,  or  other  party 
in  interest,  having  a  title  to  the  double  fund,  and  also  without  injustice 
to  the  common  debtor  (h).  Nor  is  it  applied  in  favour  of  persons  who 
are  not  common  creditors  of  the  same  common  debtor,  except  upon 
some  special  equity.  ITius,  a  creditor  of  A.  has  no  right,  unless  some 
peculiar  equity  intervenes,  to  insist  that  a  creditor  of  A.  and  B.  shall 
proceed  against  B.'s  estate  alone  for  the  satisfaction  of  his  debt,  so 
that  he  may  thereby  receive  a  greater  dividend  from  A.'s  estate  (t). 
So,  where  a  creditor  is  a  creditor  upon  two  estates  for  the  same  debt, 
he  "will  be  entitled  to  receive  dividends  to  the  full  amount  from  both 
estates,  until  he  has  been  fully  satisfied  for  his  debt;  for  his  title  in 
such  a  case  is  not  to  be  made  to  yield  in  favour  of  either  estate,  or  the 
creditors  of  either  to  his  own  prejudice  (fc).  It  has,  indeed,  been  said 
by  Lord  Hardwicke,  that  courts  of  equity  have  no  right  to  marshal 

(b)  Clifton  V.  Burt,  1  P.  Wms.  678  and  Mr.  Cox's  note. 

(c)  Aldrich  V.  Cooper,  8  Ves.  382;  Johnson  v.  Child,  i  Hare,  87;  In  re  Athill, 
Athill  V.  Athill,  16  Ch.  D.  211. 

(d)  Ex  parte  Skyrme,  In  re  Burge,  Woodall  if  Co.  [1912]  1  K.  B.  393. 

(e)  Aldrich  v.  Cooper,  8  Ves.  382;  In  re  Athill,  Athill  v.  Athill,  16  Ch.  D.  211. 
(J)  Ex  parte  Skyrme,  In  re  Burge,  Woodall  &  Co.  [1912]  1  K.  B.  393. 

ig)  In  re  Cornwall,  3  Dru.  &  War.  173;  Johnson  v.  Child,  i  Hare,  87. 
(h)  Barnes  v.  Rackster,  1  Y.  &  C.  Ch.  401 ;  Earl  of  Clarendon  v    Barham, 
1  Y.  &  C.  Ch.  688;  Flint  v.  Howard  [1893]  2  Ch.  54. 

(j)  Ex  parte  Kendall,  17  Ves.  514;  post,  §§  642  to  645. 
(ft)  Bonser  v.  Cox,  6  Beav.  84. 


§    560 — 563.]  ADMINISTRATION.  241 

the  assets  of  a  person  who  is  alive,  but  only  the  real  and  personal 
assets  of  a  person  deceased ;  for  the  assets  are  not  subject  to  the  juris- 
diction of  equity  until  his  death  (Z).  But  this  language  is  to  be 
understood  with  reference  to  the  case  in  which  it  was  spoken;  for  there 
is  no  doubt  that  there  may  be  a  marshalling  of  the  real  and  personal 
assets  of  living  persons  under  particular  circumstances,  where  peculiar 
equities  attach  upon  the  one  or  the  other;  although  such  cases  are 
very  rare  (m). 

§  561.  The  rule  of  courts  of  equity,  in  marshalling  assets  in  the 
course  of  administration,  is,  that  every  claimant  upon  the  assets  of  a 
deceased  person  shall  be  satisfied,  as  far  as  such  assets  can,  by  any 
arrangement  consistent  with  the  nature  of  their  respective  claims,  be 
appHed  in  satisfaction  thereof  {n).  The  rule  must  necessarily,  in  its 
application  to  the  actual  circumstances  of  different  cases,  admit,  nay, 
must  require,  very  different  modifications  of  relief.  It  may  be  illus- 
trated by  the  suggestion  of  a  few  cases,  which  present  its  application 
in  a  clear  view,  and  show  the  limitations  belonging  to  it. 

§  562.  In  tlie  first  place,  before  the  Administration  of  Estates  Act, 
1833  (3  &  4  Will.  4,  c.  104),  if  a  specialty  creditor  received  satisfaction 
out  of  the  personal  assets  of  the  deceased,  a  simple  contract  creditor 
(who  had  before  the  statute  no  claim  except  upon  the  personal  assets) 
in  equity  stood  in  the  place  of  the  specialty  creditor  against  the  real 
assets,  so  far  as  the  latter  had  exhausted  the  personal  assets  in  pay- 
ment of  his  debts,  and  no  farther.  But  the  court  would  not,  in  cases 
of  this  sort,  extend  the  relief  to  creditors  farther  than  the  nature  of  the 
contract  would  justify  it.  Therefore  it  must  have  been  a  specialty 
creditor  of  the  person  whose  assets  were  in  question ;  such  a  one  as 
might  have  had  a  remedy  against  both  the  real  and  personal  estate 
of  the  deceased  debtor,  or  against  either  of  them.  For  it  was  not  every 
specialty  creditor  in  whose  place  the  simple  contract  creditors  could 
come  to  affect  the  real  assets.  If  the  specialty  creditor  himself  could 
not  affect  the  real  estate,  as,  if  the  heirs  were  not  bound  by  the 
specialty;  or  if  there  were  no  personal  covenant  binding  the  party  to 
pay ;  or  if  the  creditors  were  not  creditors  of  the  same  person,  and  had 
not  any  demand  against  both  funds,  as  being  the  property  of  the  same 
person;  in  these  and  the  like  cases,  there  was  no  ground  for  the  inter- 
position of  courts  of  equity  (o). 

§  568.  On  the  other  hand,  if  a  specialty  creditor,  having  a  right  to 
resort  to  two  funds,  had  not  as  yet  received  satisfaction  out  of  either, 

(/)  Lacam  v.  MerUns,  1  Ve«.  Sen.  312. 

(m)  See  Ex  parte  Kendall,  17  Ves.  514;  Barnes  v.  Rackster,  1  T.  &  C.  Ch.  401; 
Earl  of  Clarendon  v.  Barham,  1  T.  &  C.  Ch.  688;  Flint  v.  Howard  [1893]  2  Ch.  54; 
Ex  parte  Skyrme,  In  re  Barge  Woodall  &  Co.  [1912]  1  K.  B.  393. 

(n)  See  Clifton  v.  Burt,  1  P.  Will.  679,  Mr.  Cox's  valuable  note  (1),  from  which 
I  have  freely  drawn. 

(o)  Clifton  V.  Burt,  1  P.  Will.  679,  Cox's  note  (1) ;  Aldrich  v.  Cooper,  8  Ves.  382 ; 
Ex  parte  Kendall,  17  Ves.  514.  ' 

E.J.  16 


242  EQUITY  JUHISPRUDENCE.  [OH.    IX. 

a  court  of  equity  would  not  interfere,  either  to  throw  him  for  satis- 
faction upon  the  fund  which  could  be  effected  by  him  only,  to  the 
intent  that  the  other  fund  should  be  clear  for  him  who  can  have  access 
to  the  latter  only;  or  put  the  creditor  to  his  election  between  the  one 
fund  and  the  other.  There  are,  indeed,  many  cases  in  which  it  has 
been,  said  that  a  doubly  secured  creditor  is  "  thrown  on  "  a  particular 
security  in  exoneration  or  relief  of  another,  but  it  would  be  contrary 
to  all  equitable  principles  to  interfere  with  a  party  claiming  for  value 
in  the  ex,ercise  of  his  proprietary  rights.  According  to  the  true  prin- 
ciple, if  the  creditor  resorted  to  the  fund,  upon  which  alone  the  other 
party  had  any  security,  it  would  decree  satisfaction  pro  tanto  to  the 
latter  out  of  the  other  fund  (p).  The  usual  decree  in  such  cases  was, 
that  "  in  case  any  of  the  specialty  creditors  should  exhaust  any  part 
of  the  personal  estate,  then  the  simple  contract  creditors  were  to  stand 
in  their  place,  and  receive  a  satisfa<^tion  pro  tanto  out  of"  the  real 
assets  (g). 

§  564.  The  same  principle  applied  to  the  case  of  a  mortgagee,  who 
exhausted  the  personal  estate  in  the  payment  of  his  debt.  In  such  a 
case  the  simple  contract  creditors  were  allowed  to  stand  in  the  place 
of  the  mortgagee,  in  regard  to  the  real  estate  bound  by  the  mort- 
gage (r).  And,  where  the  personal  assets  had  been  so  applied  in 
discharge  of  a  mortgage,  the  simple  contract  creditors  might,  in 
furtherance  of  the  same  principle,  have  compelled  the  heir  to  refund 
so  much  of  the  personal  assets  as  had  been  applied  to  pay  ofi  the 
mortgage  (s). 

§  564a.  It  was  formerly  doubted  whether  the  same  principle  applied 
to  the  case  of  a  vendor  of  an  estate,  whose  unpaid  purchase-money 
was,  after  the  death  of  the  purchaser,  paid  out  of  his  personal  estate. 
But  it  was  afterwards  settled  that,  in  such  a  case,  the  simple  contract 
creditors  of  the  purchaser  should  stand  in  the  place  of  the  vendor, 
with  respect  to  his  lien  on  the  estate  so  sold,  against  the  devisee,  as 
well  as  against  the  heir  of  the  same  estate  (i).  But  by  force  of  the 
Real  Estate  Charges  Act,  1867  (30  &  31  Vict.  c.  69),  this  illustration 
can  no  longer  arise  in  practice,  as  the  heir  or  devisee  would  have  to 
refund  the  balance  so  paid  in  any  event. 

§  565.  In  general,  legatees  were  entitled  to  the  same  equities 
where  the  personal  estate  was  exhausted  by  specialty  creditors ;  for 
they  would  otherwise  have  been  without  any  means  of  receiving  the 
bounty  of  the  testator  (m).  So  they  were  permitted,  in  like  manner, 
to  stand  in  the  place  of  the  specialty  creditors,  against  the  real  assets 

(p)  Hatherley,  Jj.C— Dolphin  v.  Aylward,  L.  E.  4  H.  L.  &  J.  501. 
(g)  Davies  v.  Tofp,  1  Bro.  C.  C.  526;  Aldrich  v.  Cooper,  8  Ves.  382;  Sproule  v 
Prior,  8  Sim.  189. 

(r)  Aldrich  v.  Cooper,  8  Ves.  382. 

(s)  Wilson  V.  Fielding,  2  Vern.  763. 

(t)  Selby  V.  Selby,  4  Euss.  336. 

(u)  Tipping  v.  Tipping,  1  P.  Wms.  730;  Burton  v.  Pierpoint,  2  P.  Wms.  81. 


§  564 — 566a.]  administration.  243 

descended  to  the  heir  (x).  So  they  were  permitted,  in  like  manner,  to 
stand  in  the  place  of  a  mortgagee,  who  had  exhausted  the  personal 
estate  in  paying  his  mortgage.  And  their  equity  would  prevail,  not 
only  in  cases  where  the  mortgaged  prernises  had  descended  to  the 
heir-at-law ;  but  also  where  they  had  been  devised  to  a  devisee,  who  is 
to  take  subject  to  the  mortgage  (y).  But  their  equity  will  not  prevail 
against  a  devisee  of  the  real  estate  not  mortgaged,  whether  he  be  a 
specific  or  a  residuary  devisee,  residuary  devises  being  now  specific  by 
force  of  the  Inheritance  Act,  1833  (3  &  4  Will.  4,  c.  106);  for  he  also 
took  by  the  bounty  of  the  testator;  and  between  persons,  equally 
taking  by  the  bounty  of  the  testator,  equity  would  not  interfere,  unless 
the  testator  had  clearly  shown  some  ground  of  preference  or  priority 
of  the  one  over  the  other  (z).  So  that  there  was  a  distinction  between 
the  case  where  the  estate  was  devised,  and  there  were  specialty 
creditors,  and  the  case  where  it  was  devised,  and  there  was  a  mortgage 
on  it.  In  the  latter  case,  the  legatees  stood  in  the  place  of  the  mort- 
gagee, if  he  exhausted  the  personal  assets ;  in  the  former  case,  they  did 
not  stand  in  the  place  of  the  specialty  creditors.  The  reason  assigned 
is,  that  a  specialty  debt  is  no  lien  on  land  in  the  hands  of  the  obligor, 
or  his  heir  or  devisee.  But  a  mortgage  is  a  lien,  and  an  estate  in 
the  land.  By  a  devise  of  land  mortgaged,  nothing  passes  but  the 
equity  of  redemption,  if  it  is  a  mortgage  in  fee;  if  it  is  for  years,  the 
reversion  and  equity  of  redemption  pass. 

§  566.  In  like  manner,  where  lands  are  subjected  to  the  payment 
of  all  debts,  legatees  are  permitted  to  stand,  in  regard  to  such  lands, 
in  the  place  of  simple  contract  creditors,  who  have  come  upon  the 
personal  estate,  and  exhausted  it  so  far  as  to  prevent  a  satisfaction  of 
their  legacies  (a).  So,  where  legacies  given  by  a  will  are  charged  on 
real  estate,  but  legacies  by  codicil  are  not;  the  former  legatees  will  be 
compelled  to  resort  to  real  assets,  if  there  is  a  deficiency  of  the  assets 
to  satisfy  both  (b). 

§  566a.  Upon  analogous  grounds,  if  the  subject-matter  of  a  specific 
legacy  is  pledged,  mortgaged  or  otherwise  incumbered  by  the  testator, 
the  specific  legatee  is  entitled  to  have  the  property  redeemed  by  the 
executor,  out  of  the  general  assets  of  the  testator,  unless  the  in- 
cumbrance exceed  the  value  of  the  property,  in  which  event  his  right 
is  limited  to  that  value  (c). 

(x)  Clifton  V.  Burt,  1  P.  Wms.  678,  and  Cox's  note;  Fenhoulet  v.  Passavant, 
1  Dick.  253. 

(y)  Lutkins  v.  Leigh,  Caa.  temp.  Talb.  53;  Forrester  v.  Leigh,  Ambler,  171; 
Lomas  v.  Wright,  2  M.  &  K.  769 ;  Porcher  v.  Wilson,  14  W.  E.  1011 ;  Lord  Lilford 
v.  Powys-Keck,  35  Beav.  77. 

(z)  Clifton  v.  Burt,  1  P.  Wms.  678;  and  Cox's  note;  Biederman  v.  Seymour,  3 
Beav.  368;  Mirehou^e  v.  Scaife,  2  M.  &  Cr.  695. 

(a)  Paterson  v.  Scott,  1  De  G.,  M.  &  G.  531;  In  re  Salt,  Brothwood  v.  Keeling 
[1895]  2  Ch.  203. 

(b)  Norman  v.  Morrill,  i  Ves.  769. 

(c)  Knight  v.  Davis,  3  Myl.  &  K.  358;  Bothamley  v.  Sherson,  L.  R.  20  Eq.  304. 


244  EQUITY  JURISPRUDENCE.  [CH.    IX. 

§  567.  The  dcwtrine  adopted  in  all  these  cases,  of  allowing  one 
creditor  to  stand  in  the  place  of  another  having  two  funds  to  resort 
to,  and  electing  to  take  satisfaction  out  of  one,  to  which  alone  another 
creditor  can  resort,  was  probably  transferred  from  the  civil  law  into 
equity  jurisprudence.  It  is  certainly  founded  in  principles  of  natural 
justice;  and  it  early  worked  its  way,  undei*  the  title  of  substitution, 
into  the  civil  law,  where  it  was  applied  in  a  very  large  and  liberal 
manner.  But  upon  this  subject  we  shall  have  occasion  to  speak 
hereafter  in  another  place  (d). 

§  568.  There  were  other  ca^es  in  which  the  marshalling  of  assets 
was  in  like  manner  enforced  in  courts  of  equity;  as,  for  instance,  in 
favour  of  the  widow  of  a  person  deceased.  After  the  death  of  the 
husband,  his  creditors  could  not  take  his  widow's  necessary  apparel  in 
satisfaction  of  their  debts  (e).  With  this  exception,  a  widow's 
paraphernalia  were  generally  subject  to  the  payment  of  the  debts  of 
her  husband.  But,  in  favour  of  the  widow,  and  to  preserve  her 
paraphernalia,  courts  of  equity  will  interfere,  by  turning  creditors 
entitled  to  proceed  against  real  assets  or  funds,  over  to  these  assets 
and  funds  for  satisfaction.  And  if  the  paraphernalia  have  been 
actually  taken  by  creditors  in  satisfaction  of  their  debts,  the  widow 
will  be  allowed  to  stand  in  their  place,  and  the  assets  will  be 
marshalled  so  as  to  give  her  a  compensation  pro  tanto  (/). 

§  569.  So  long  as  the  Mortmain  Act  (9  Geo.  2,  c.  36)  was  in 
force,  legacies  or  bequests  by  will  to  charitable  uses,  payable  out 
of  real  estate,  or  charged  on  real  estate,  or  to  arise  from  the  sale 
of  real  estate,  were  utterly  void.  And  courts  of  equity,  following 
out  the  intent  and  object  of  the  statute,  refused  to  interfere  in  favour 
of  legatees  of  personal  property  for  charity,  by  marshalling  assets 
for  this  purpose  in  any  case  whatever;  as,  by  throwing  the  debts 
or  legacies  on  real  assets  for  payment;  or,  by  allowing  the  charity 
legatees  to  stand  in  the  place  of  any  creditor  or  legatee  who  had 
exhausted  the  personal  estate,  against  the  real  assets,  but  would 
give  effect  to  an  express  direction  of  the  testator  that  charitable 
legacies  were  to  be  paid  out  of  pure  personalty  in  priority  to  all  other 
charges  (gr).  Since  the  Mortmain  and  Charitable  Uses  Act,  1891, 
marshalling  as  applied  to  charities  will  be  of  little  importance. 

§  570.  Hitherto  we  have  been  speaking  of  marshalling  assets  in 
favour  of  creditors,  legatees,  or  widows.  But  it  is  not  to  be  under- 
stood that  these  are  the  only  persons  entitled  to  the  benefit  of  this 
wholesome  doctrine  of  courts  of  equity.     Heirs-at-law  and   devisees 

(d)  Post,  §  635,  636,  637. 

(e)  Black.  Comm.  436;  Noy's  Maxims,  ch.  49;  Townshend  v.  Windham,  2  Ves.  7. 
(/)  Earn  on  Assets,  ch.  18,  pp.  363,  354,  and  the  cases  there  cited;  Aldrich  v. 

Cooper,  8  Vea.  397.    See  Masson  TempUer  cC  Co.  v.  De  Fries  [1909]  2  K.  B.  831. 

(g)  Philanthropic  Sac.  v.  Kemp,  4  Beav.  681;  Robinson  v.  Geldard,  3  Mac.  &  G. 
735;  Beaumont  v.  Olivera,  L.  E.  4  Ch.  309;  Miles  v.  Harrison,  L.  E.  9  Ch.  316. 


§    567 — 571].  ADMINISTRATION.  245 

are,  in  a  great  variety  of  cases,  entitled  to  the  protection  resulting 
from  the  just  application  of  this  equitable  remedy.  Thus,  for  instance, 
if  an  heir  or  devisee  of  real  estate  is  sued  by  a  bond-creditor,  he 
may,  in  many  cases,  be  entitled  to  stand  in  the  place  of  such  specialty 
creditor  against  the  personal  estate  of  the  deceased  testator  or 
intestate  (h). 

§  571.  In  order  more  fully  to  comprehend  the  nature  and  limita- 
tions of  this  doctrine,  it  is  necessary  to  state  that,  in  the  view  of 
courts  of  equity,  the  personal  estate  of  the  deceased  constitutes  the 
primary  and  natural  fund  for  the  payment  of  his  debts;  and  they 
will  direct  it  to  be  applied  in  the  first  instance  to  that  purpose,  unless 
from  the  will  of  the  deceased,  or  from  some  other  controlling  equities, 
it  is  clear  that  it  ought  not  to  be  so  applied  (?').  But,  in  the  order  of 
satisfaction  out  of  the  personal  estate  of  the  deceased,  if  it  is  not 
sufficient  for  all  purposes,  creditors  are  preferred  to  legatees;  specific 
legatees  are  preferred  to  the  heir  and  devisee  of  the  real  estate, 
charged  with  specialties  or  with  the  payment  of  debts  (fc) ;  the  devisee 
of  mortgaged  premises  is  preferred  to  the  heir-at-law  of  descended 
estates  (I) ;  and  a  fortiori  the  devisee  of  premises  not  mortgaged  is  pre- 
ferred to  the  heir-at-law  (m).  The  natural  inference  is  that  the  testator 
intended  effect  to  be  given  to  all  his  specific  gifts,  and  specific 
legatees  and  specific  devisees  contribute  rateably  in  proportion  to  the 
respective  values  of  the  subject-matter  to  make  good  to  creditors  any 
deficiency  in  the  assets  (n).  Where  the  equities  of  the  legatees  and 
devisees  are  equal,  which  (as  we  have  seen)  is  sometimes  the  case, 
courts  of  equity  remain  neutral,  and  silently  suffer  the  law  to 
prevail  (o).  But  where  the  personal  assets  are  sufficient  to  pay  all 
the  debts  and  legacies  and  other  charges,  there  the  heir  or  devisee, 
who  has  been  compelled  to  pay  a  debt  or  an  incumbrance  of  his 
ancestor  or  testator,  binding  upon  him,  is  entitled  (unless  there 
be  some  other  equity  which  repels  the  claim)  to  have  the  debt  paid 
out  of  thci  personal  assets  in  preference  to  the  residuary  legatees  o:r 
distributees.  Thus,  for  instance,  if  a  specialty  debt  or  mortgage 
of  an  ancestor  or  testator  is  paid  by  the  heir  or  devisee,  he  is  entitled 
to  have  it  paid  out  of  the  personal  assets  in  the  hands  of  the  executor, 

(h)  Mogg  v.  Hodges,  2  Ves.  Sen.  62;  Galton  v.  Hancock,  2  Atk.  424,  425. 

(j)  See  Co.  Litt.  208  b,  Butler's  note  (106). 

(k)  Cope  V.  Cope,  2  Salk.  449. 

(I)  Toller  on  Executors,  B.  3,  ch.  8,  p.  418 ;  Howell  v.  Price,  1  P.  Will.  294,  Mr. 
Cox's  note;  Cope  v.  Cope,  2  Salk.  449,  Mr.  Evans's  note. 

(m)  Chaplin  v.  Chaplin,  3  P.  Will.  364;  Davies  v.  Topp,  1  Bro.  C.  C.  824; 
Manning  v.  Spooner,  3  "Ves.  114. 

(n)  Tombs  v.  Boch,  2  Coll.  490;  Hensman  v.  Fryer,  L.  E.  3  Ch.  420;  Lancefield 
V.  Iggulden,  L.  E.  10  Ch.  136. 

(o)  The  whole  subject  was  largely  discussed  in  Davies  v.  Tropp,  1  Bro.  C.  C.  524, 
and  in  Mr.  Cox's  note  to  Howell  v.  Price,  1  P.  Will.  294;  and  Evelyn  v.  Evelyn,  2 
P.  Will.  664;  Bootle  v.  Blundell,  1  Meriv.  215  to  238;  Earn  on  Assets,  ch.  28,  §§  1  to  4, 
ch.  29,  §§  1  to4. 


246  EQUITY  JURISPRUDENCE.  [CH.    IX. 

unless  the  testator,  by  express  words  or  other  manifest  intention,  has 
clearly  exempted  the  personal  assets  from  the  payment  (p).  In 
considering  these  cases  the  student  must  remember  the  change 
introduced  by  the  Eeal  Estates  Charges  Act,  1854,  1867,  and  1877 
(17  &  18  Vict.  c.  113,  30  &  81  Vict.  c.  69,  and  40  &  41  Vict.  c.  34), 
which  cast  upon  the  successor  to  real  estate  the  burden  of  charges 
existing  thereon,  unless  the  ancestor  or  testator  has  made  express 
provision  to  the  contrary.  But  this  would  not  affect  the  right  of 
the  mortgagee  to  pursue  his  remedies  which  are  left  unaffected  by 
the  statutes,  and  accordingly  the  principles  of  marshalling  acquire 
a  new  importance  for  the  purpose  of  adjusting  the  burden  according 
to  its  true  incidence. 

§  572.  What  constitutes  proof  of  am  intended  exemption  by  the 
testator  is  not,  in  many  cases,  ascertainable  upon  abstract  principles, 
but  depends  upon  circumstances  (g).  It  is  certain,  however,  that  a 
devise  of  all  the  testator's  real  estate,  subject  to  the  payment  of 
his  debts,  or  a  devise  of  a  particular  estate,  subject  to  the  payment  of 
debts,  is  not  alone  sufficient  to  exempt  the  personal  estate  (r).  But, 
on  the  other  hand,  if  the  real  estate  is  directed  to  be  sold  for  the 
payment  of  debts,  and  the  personal  estate  is  expressly  bequeathed 
to  legatees,  there  the  personal  estate  will,  by  necessary  implication, 
be  exempted  (s). 

§  573.  The  doctrine  of  the  court,  in  aU  cases  of  this  sort,  is 
supposed  to  be  founded  upon  the  saxne  principle;  that  is,  to  follow 
out  the  intention  of  the  t-estator.  The  personal  estate  is  deemed  the 
natural  and  primary  fund  for  the  payment  of  all  debts;  and  the 
testator  is  presumed  to  act  upon  this  legal  doctrine  until  he  shows 
some  other  distinct  and  unequivocal  intention.  The  general  rule, 
therefore,  of  courts  of  equity,  although  sometimes  delivered  in  one 
form  and  sometimes  in  another,  is  (as  Lord  Hardwicke  has  expressed 
it)  that  the  personal  estate  shall  be  first  applied  to  the  payment  of 
debts,  unless  there  be  express  words,  or  a  plain  intention  of  the 
testator  to  exempt  his  personal  estate,  or  to  give  his  personal  estate 
as  a  specific  legacy ;  for  he  may  do  this,  as  well  as  give  the  bulk  of  his 
real  estate  by  way  of  specific  legacy  (i). 

§  574.  But,  although  the  personal  estate  is  thus  decreed  the 
general  and  primary  fund  for  the  payment  of  debts,  and  still  remains 
so,  notwithstanding  the  real  estate  is  also  collaterally  chargeable ;  yet 
the  rule  was  otherwise,  or  rather  was  differently  applied,  where  the 

{p\  Howell  V.  Price,  1  P.  Will.  291,  294,  and  Cox's  note  (1);  Duke  of  Ancasterv. 
Mayer',  1  Bro.  C.  C.  454;  Tower  v.  Lord  Rous,  18  Ves.  132. 

(g)  Bootle  v.  Blundell,  1  Mer.  193. 

(r)  Ouseley  v.  Anstruther,  10  Beav.  453;  Whieldon  v.  Spode,  15  Beav.  537;  Wells 
V.  Row,  48  L.  J.  Ch.  476. 

(s)  Plenty  v.   West,  16  Beav.  173;  Gilbertson  v.  Gilbertson,  34  Beav.  854. 

(t)  Walker  v.  Jackson,  2  Atk.  625;  ante,  §  556;  Powell  v.  Riley,  12  Eq.  175. 


§  572 — 574a..]  administration.  247 

charge  of  the  debt  was  principally  and  primarily  upon  the  real  estate, 
and  the  personal  security  of  covenant  was  only  collateral;  for  the 
primary  fund  ought  in  conscience,  in  all  cases,  to  exonerate  the 
auxiliary  fund  {u).  Having  regard  to  the  statutes  next  to  be  noticed, 
it  seems  unnecessary  to  preserve  the  discussion  of  this  topic  by  the 
learned  author. 

§  574a.  The  law  as  to  the  primary  liability  of  the  general  personal 
estate  to  pay  mortgages  and  other  charges  on  lands  devised  or 
descended  has  been  entirely  altered  by  the  Eeal  Estate  Charges 
Act,  1854  (17  &  18  Vict.  c.  113),  and  amending  Acts.  This  Act 
enacted  that,  ' '  when  any  person  shall,  after  the  passing  of  this  Act, 
die  seised  of  or  entitled  to  any  interest  in  any  land  <x  other  heredita- 
ments, which  shall,  at  the  time  of  his  death,  be  charged  with  the 
payment  of  any  sum  or  sums  of  money  by  way  of  mortgage,  and  such 
person  shall  not  by  his  will,  deed,  or  other  document,  have  signified 
any  contrary  or  other  intention,  the  heir  or  devisee  to  whom  such 
lands  or  hereditaments  shall  descend  or  be  devised,  shall  not  be 
entitled  to  have  the  mortgage  debt  discharged  or  satisfied  out  of  the 
personal  estate  or  any  other  real  estate  of  such  person,  but  the  lands 
or  hereditaments  so  charged  shaU  as  between  the  different  persons 
claiming  through  or  under  the  deceased  person  be  primarily  liable 
to  the  payment  of  all  mortgage  debts  with  which  the  same  shall 
be  charged,  every  part  thereof,  according  to  its  value,  bearing  a  pro- 
portionate part  of  the  mortgage  debts  charged  on  the  whole  thereof." 
And  the  words  ' '  have  signified  any  contrary  or  other  intention 
have  been  defined  by  the  Eeal  Estates  Charges  Act,  1867  (30  &  31 
Vict.  c.  69),  "  in  the  construction  of  the  will  of  any  person  who  may 
die  after  the  31st  day  of  December,  1867,  a  general  direction  that  the 
debts  or  all  the  debts  of  the  testator  shall  be  paid  out  of  his  personal 
estate  shall  not  be  deemed  to  be  a  declaration  of  his  intention  contlrary 
to  or  other  than  the  rule  established  by  the  last-mentioned  Act, 
unless  such  contrary  or  other  intention  shall  be  further  declared  by 
words  expressly  or  by  necessary  implication  referring  to  all  or  some 
of  the  testator's  debt  or  debts  charged  by  way  of  mortgage  on  any 
part  of  his  real  estate."  By  the  same  Act  the  word  "  mortgage" 
in  the  principal  Act  was  extended  to  include  the  vendor's  lien  for 
impaid  purchase-money  if  the  vendor  left  the  land  by  will.  By  a 
further  amending  Act,  the  Real  Estates  Charges  Act,  1877  (40  &  41 
Vict.  c.  34),  the  vendor's  lien  on  lands  purchased  by  an  intestate  was 
included,  and  the  same  Act  also  embraced  leasehold  interests  within 
the  scope  of  the  Act.  It  has  been  said  that  the  Act  of  1877  must  be 
regarded  as  a  legislative  declaration  that  the  statutes  are  to  receive 

{»)  See  Co.  Litt.  208  fc,  Butler's  note  (106);  Evelyn  v.  Evelyn,  2  P.  Will.  664, 
and  Cox's  note  (1). 


246  EQUITY  JDEISPRDDENCB.  [CH.    IX. 

unless  the  testator,  by  express  words  or  other  manifest  intention,  has 
clearly  exempted  the  personal  assets  from  the  payment  (p).  In 
considering  these  cases  the  student  must  remember  the  change 
introduced  by  the  Eeal  Estates  Charges  Act,  1854,  1867,  and  1877 
(17  &  18  Vict.  c.  113,  30  &  81  Vict.  c.  69,  and  40  &  41  Vict.  c.  34), 
which  cast  upon  the  successor  to  real  estate  the  burden  of  charges 
existing  thereon,  unless  the  ancestor  or  testator  has  made  express 
provision  to  the  contrary.  But  this  would  not  affect  the  right  of 
the  mortgagee  to  pursue  his  remedies  which  are  left  unafiected  by 
the  statutes,  and  accordingly  the  principles  of  marshalling  acquire 
a  new  importance  for  the  purpose  of  adjusting  the  burden  according 
to  its  true  incidence. 

§  572.  What  constitutes  proof  of  an  intended  exemption  by  the 
testator  is  not,  in  many  cases,  ascertainable  upon  abstract  principles, 
but  depends  upon  circumstances  (g).  It  is  certain,  however,  that  a 
devise  of  all  the  testator's  real  estate,  subject  to  the  payment  of 
his  debts,  or  a  devise  of  a  particular  estate,  subject  to  the  payment  of 
debts,  is  not  alone  sufficient  to  exempt  the  personal  estate  (r).  But, 
on  the  other  hand,  if  the  real  estate  is  directed  to  be  sold  for  the 
payment  of  debts,  and  the  personal  estate  is  expressly  bequeathed 
to  legatees,  there  the  personal  estate  will,  by  necessary  implication, 
be  exempted  (s). 

§  573.  The  doctrine  of  the  court,  in  all  cases  of  this  sort,  is 
supposed  to  be  founded  upon  the  same  principle;  that  is,  to  follow 
out  the  intention  of  the  testator.  The  personal  estate  is  deemed  the 
natural  and  primary  fund  for  the  payment  of  all  debts;  and  the 
testator  is  presumed  to  act  upon  this  legal  doctrine  until  he  shows 
some  other  distinct  and  unequivocal  intention.  The  general  rule, 
therefore,  of  courts  of  equity,  although  sometimes  delivered  in  one 
form  and  sometimes  in  another,  is  (as  Lord  Hardwicke  has  expressed 
it)  that  the  personal  estate  shall  be  first  applied  to  the  payment  of 
debts,  unless  there  be  express  words,  or  a  plain  intention  of  the 
testator  to  exempt  his  personal  estate,  or  to  give  his  personal  estate 
as  a  specific  legacy ;  for  he  may  do  this,  as  well  as  give  the  bulk  of  his 
real  estate  by  way  of  specific  legacy  (t). 

§  574.  But,  although  the  personal  estate  is  thus  decreed  the 
general  and  primary  fund  for  the  payment  of  debts,  and  still  remains 
so,  notwithstanding  the  real  estate  is  also  collaterally  chargeable;  yet 
the  rule  was  otherwise,  or  rather  was  differently  applied,  where  the 

(p)_  Howell  V.  Price,  1  P.  Will.  291,  294,  and  Cox's  note  (1);  Duke  of  AncasterY. 
Mayer',  1  Bro.  C.  C.  454;  Tower  v.  Lord  Rous,  18  Ves.  132. 

(g)  Bootle  v.  Blundell,  1  Mer.  193. 

(r)  Ouseley  v.  Anstruther,  10  Beav.  463;  Whieldon  v.  Spode,  15  Beav.  537;  Wells 
V.  Row,  48  L.  J.  Ch.  476. 

(s)  Plenty  v.  West,  16  Beav.  173;  Gilbertson  v.  Gilbertson,  34  Beav.  354. 

(t)  Walker  v.  Jackson,  2  Atk.  625;  ante,  §  556;  Powell  v.  Riley,  12  Eq.  175. 


§  572 — 574a..]  administration.  247 

charge  of  the  debt  was  principally  and  primarily  upon  the  real  estate, 
and  the  personal  security  of  covenant  was  only  collateral;  for  the 
primary  fund  ought  in  conscience,  in  all  cases,  to  exonerate  the 
auxiliary  fund  (u).  Having  regard  to  the  statutes  next  to  be  noticed, 
it  seems  unnecessary  to  preserve  the  discussion  of  this  topic  by  the 
learned  author. 

§  574a.  The  law  as  to  the  primary  liabihty  of  the  general  personal 
estate  to  pay  mortgages  and  other  charges  on  lands  devised  or 
descended  has  been  entirely  altered  by  the  Eeal  Estate  Charges 
Act,  1854  (17  &  18  Vict.  c.  113),  and  amending  Acts.  This  Act 
enacted  that,  "when  any  person  shall,  after  the  passing  of  this  Act, 
die  seised  of  or  entitled  to  any  interest  in  any  land  or  other  heredita- 
ments, which  shall,  at  the  time  of  his  death,  be  charged  with  the 
payment  of  any  sum  or  sums  of  money  by  way  of  mortgage,  and  such 
person  shall  not  by  his  will,  deed,  or  other  document,  have  signified 
any  contrary  or  other  intention,  the  heir  or  devisee  to  whom  such 
lands  or  hereditaments  shall  descend  or  be  devised,  shall  not  be 
entitled  to  have  the  mortgage  debt  discharged  or  satisfied  out  of  the 
personal  estate  or  any  other  real  estate  of  such  person,  but  the  lands 
or  hereditaments  so  charged  shaU  as  between  the  diSerent  persons 
claiming  through  or  under  the  deceased  person  be  primarily  liable 
to  the  payment  of  all  mortgage  debts  with  which  the  same  shall 
be  charged,  every  part  thereof,  according  to  its  value,  bearing  a  pro- 
portionate part  of  the  mortgage  debts  charged  on  the  whole  thereof. ' ' 
And  the  words  ' '  have  signified  any  contrary  or  other  intention  ' ' 
have  been  defined  by  the  Eeal  Estates  Charges  Act,  1867  (30  &  31 
Vict.  c.  69),  "  in  the  construction  of  the  will  of  any  person  who  may 
die  after  the  31st  day  of  December,  1867,  a  general  direction  that  the 
debts  or  all  the  debts  of  the  testator  shall  be  paid  out  of  his  personal 
estate  shall  not  be  deemed  to  be  a  declaration  of  his  intention  contrary 
to  or  other  than  the  rule  established  by  the  last-mentioned  Act, 
unless  such  contrary  or  other  intention  shall  be  further  declared  by 
words  expressly  or  by  necessary  implication  referring  to  all  or  some 
of  the  testator's  debt  or  debts  charged  by  way  of  mortgage  on  any 
part  of  his  real  estate."  By  the  same  Act  the  word  "  mortgage" 
in  the  principal  Act  was  extended  to  include  the  vendor's  lien  for 
impaid  purchase-money  if  the  vendor  left  the  land  by  will.  By  a 
further  amending  Act,  the  Eeal  Estates  Charges  Act,  1877  (40  &  41 
Vict.  c.  34),  the  vendor's  lien  on  lands  purchased  by  an  intestate  was 
included,  and  the  same  Act  also  embraced  leasehold  interests  within 
the  scope  of  the  Act.  It  has  been  said  that  the  Act  of  1877  must  be 
regarded  as  a  legislative  declaration  that  the  statutes  are  to  receive 

(u)  See  Co.  Litt.  208  b,  Butler's  note  (106) ;  Evelyn  v.  Evelyn,  2  P.  Will.  664, 
and  Cox's  note  (1). 


250  EQUITY  JURISPRUDENCE.  [CH.    IX. 

sale  or  other  transaction  of  an  executor,  attempting  to  bind  the  assets 
in  his  character  of  executor  (g),  so  as  to  let  in  the  claim  of  creditors 
and  others  who  are  principally  interested,  there  must  be  some  fraud, 
or  collusion,  or  misconduct  between  the  parties.  A  mere  secret 
intention  of  the  executor  to  misapply  the  funds  unknown  to  the  other 
party  dealing  with  him,  or  a  subsequent  unconnected  misapplication 
of  them,  will  not  affect  the  purchaser.  He  must  be  conusant  of  such 
intention,  and  designedly  aid  or  assist  in  its  execution  (h).  But  in 
the  view  of  courts  of  equity,  there  is  a  broad  distinction  between  cases 
of  a  sale  or  pledge  of  the  testator's  assets  for  a  present  advance  and 
cases  of  such  a  sale  or  pledge  for  an  antecedent  debt  of  the  executor; 
for,  in  the  latter  case,  the  parties  must  be  generally  understood  to  co- 
operate in  a,  misapplication  of  the  assets  from  their  proper  purpose, 
unless  that  inference  is  repelled  by  the  circumstances  (i). 

§  581.  The  general  doctrine  now  maintained  by  courts  of  equity 
upon  this  subject,  cannot  be  better  summed  up  than  it  is  by  a  learned 
judge  (Sir  John  Leach)  in  an  important  case.  "  Every  person  " 
(said  he)  "who  acquires  personal  assets  by  a  breach  of  trust  or  a 
devastavit  by  the  executor,  is  responsible  to  those  who  are  entitled 
under  the  will,  if  he  is  a  party  to  the  breach  of  trust.  Generally 
speaking,  he  does  not  become  a  party  to  the  breach  of  trust  by 
buying  or  receiving,  as  a  pledge  for  money  advanced  to  the  executor 
at  the  time,  any  part  of  the  personal  assets,  whether  specificaUy  given 
by  the  will  or  otherwise;  because  this  sale  or  pledge  is  held  to  be 
prima  facie  consistent  with  the  duties  of  an  executor.  Generally 
speaking,  he  does  become  a  party  to  the  breach  of  trust,  by  buying 
or  receiving  in  pledge  any  part  of  the  personal  assets,  not  for  money 
advanced  at  the  time,  but  in  satisfaction  of  his  private  debt ;  because 
this  sale  or  pledge  is  prima  facie  inconsistent  with  the  duty  of  an 
executor.  I  preface  both  of  these  propositions  with  the  term 
'  generally  speaking,'  because  they  both  seem  to  admit  of  ex- 
ceptions"  (k).  And  it  may  be  added,  that,  whenever  there  is  a  mis- 
application of  the  personal  assets,  and  the  assets  or  their  proceeds 
can  be  traced  into  the  hands  of  any  persons  affected  with  notice  of 
such  misapplication,  there  the  trust  will  attach  upon  the  property  or 
proceeds  in  the  hands  of  such  persons,  whatever  may  have  been  the 
extent  of  such  misapplication  or  conversion  (I).     The  personal  repre- 

ig)  Hill  V.  Simpson,  7  Ves.  152,  In  re  Cooper,  Cooper  v.  Vesetj,  20  Ch.  D.  611; 
Attenborough  v.  Solomon  [1913]  A.  C.  76. 

(h)  Hill  V.  Simpson,  7  Ves.  152;  McLeod  v.  Drummond,  14  Ves.  355,  17  Ves. 
152;  Walker  v.  Taylor,  8  Jur.  N.  S.  681. 

(j)  Hill  V.  Simpson,  7  Ves.  152.  See  Mr.  Eoscoe's  learned  note  to  Whale  v. 
Booth,  4  Doug.  47,  note  (66). 

(7c)  Keane  v.  Robarts,  4  Mad.  357,  358. 

(l)  Adair  v.  Shaw,  1  Sch.  &  Lefr.  261,  262.  The  same  principle  may  be  further 
illustrated  by  the  cases  already  mentioned,  where  creditors  and  others  are  permitted 
to  sue  the  debtors  of  the  deceased,  when  they  collude  with  the  executor  or  administra- 


§    581 — 583.]  ADMINISTRATION.  251 

sentative  can  only  effectively  dispose  of  specific  items  of  the  estate. 
He  cannot  create  a  general  charge  upon  the  estate  for  moneys  paid 
to  him,  even  where  they  are  ostensibly  borrowed  for  the  purposes  of 
the  estate  (m). 

§  582.  In  cases  where,  during  coverture,  the  assets  of  a  feme 
covert  executrix  were  wasted  by  the  husband,  and  he  then  died,  no 
action  at  law  lay  by  the  creditors  against  the  assets  of  the  husband. 
But  courts  of  equity  did,  in  such  a  case,  interfere,  and  relieve  the 
creditors  upon  the  ground  of  the  breach  of  tinist  in  the  husband, 
by  his  wrongful  conversion  of  the  assets  of  the  wife's  testator  (n.). 
The  equitable  rule  now  prevails  by  force  of  the  Judicature  Act,  1873, 
s.  25,  sub-s.  11. 

§  583.  And  here  we  might  treat  of  the  nature  and  extent  of  the 
jurisdiction  which  courts  of  equity  will  exercise  in  regard  to  the 
assets  of  foreigners,  collected  under  what  is  called  an  ancillary 
administration  (because  it  is  subordinate  to  the  original  administra- 
tion), taJsen  out  in  the  country  where  the  assets  are  locally  situate. 
This  subject,  however,  has  been  largely  discussed  in  another  place, 
in  considering  the  conflict  of  the  laws  of  different  countries  upon  the 
subject  of  administrations  of  property  situate  therein,  and,  therefore, 
it  wiU  be  but  very  briefly  taken  notice  of  here  (o).  In  general,  it  may 
be  said  that,  where  a  domestic  executor  or  administrator  collects 
assets  of  the  deceased  in  a  foreign  country,  without  any  letters  of 
administration  taken  out,  or  any  actual  administration  accounted  for 
in  such  foreign  country,  and  brings  them  home,  they  will  be  treated 
as  personal  assets  of  the  deceased,  to  be  administered  here  under 
the  domestic  administration  (p).  And  where  such  assets  have  been 
collected  abroad,  under  a  foreign  administration,  and  such  administra- 
tion is  still  open,  the  executor  or  administrator  can  be  called  upon 
to  account  for  such  assets  under  the  domestic  administration  (g),  but 
regard  is  generally  paid  to  the  law  peculiar  to  the  foreign  country  (r). 
And,  indeed,  in  many  instances  probates  of  wills  and  letters  of 
administration  are  not  granted  in  any  country  in  respect  to  assets 
generally,  but  only  in  respect  to  such  assets  as  are  within  the  juris- 
diction of  the  country  by  which  the  probate  is  established  or  the 
administration  granted.  In  a  modern  decision  which  contains  an 
elaborate  review  of  previous  decisions,  the  law  was  laid  down  as 
follows : — The  personal  assets   (not  including  leaseholds)  of  a  person 

tor,  although  they  are  not  suable  except  by  the  executor  or  administrator.  See  ante, 
§§  422  to  424. 

(to)  Farhall  v.  Farhall,  lu.  E.  7  Ch.  123. 

(n)  Adair  v.  Shaw,  1  Sch.  &  Lefr.  261,  262,  263. 

(o)  See  Story,  Comm.  on  Conflict  of  Laws,  ch.  13,  §  492  to  530. 

(p)  Dowdale's  Case,  6  Co.  46b,  Att.-Gen.  v.  Dimond,  1  Or.  &  Jerv.  370. 

(g)  Ewing  v.  Orr-Ewing ,  9  App.  Gas.  34;  Ewing  v.  Orr-Ewing,  10  App.  Cas.  453. 

(r)  Waterhouse  v.  Stansjield,  9  Hare,  234,  10  Hare,  254;  Cook  v.  Gregson,  2 
Drew.  286 ;  Harrison  v.  Harrison,  L.  E.  8  Ch.  342. 


252  EQUITY  JUBISPRUDENCE.  [CH.    IX. 

having  a  foreign  domicile  are  governed  for  the  purpose  of  legal 
representation,  of  collection  and  of  administration  as  distinguished 
from  distribution,  by  the  lex  loci  rei  sitse;  for  the  purposes  of 
succession  and  enjoyment  they  are  governed  by  the  lex  domicilii  (s). 
Land  including  leaseholds  can  only  be  administered  by  the  lex  loci 
rei  siix  {t). 

(s)  Blackwood  v.  Reg.,  8  App.  Cas.  82.  See  also  Macdonald  v.  Macdonald,  L.  R. 
14  Eq.  60. 

(t)  Birtwhistle  v.  Vardill,  2  CI.  &  P.  S71 ;  7  CI.  &  P.  895;  Harrison  v.  Harrison, 
Jj.  K.  8  Ch.  342;  Freke  v.  Lord  Carherry,  L.  E.  16  Eq.  461;  Duncan  v.  Lawson,  41 


§  590,  591.]  u!GACiES.  '25» 


CHAPTER    X. 


LEGACIES. 

§  590.  Another  head  of  the  original  concurrent  jurisdiction  in  equity 
is  in  regard  to  Legacies.  This  subject  has  been  in  part  incidentally 
treated  before;  but  it  is  proper  to  bring  the  subject  more  fully  under' 
review.  It  seems  that,  originally,  the  jurisdiction  over  personal 
legacies  was  claimed  and  exercised  in  the  temporal  courts  of  common 
law ;  or,  at  least,  that  it  was  a  jurisdiction  mixti  fori,  claimed  and 
exercised  in  the  county  court,  where  the  bishop  and  sheriff  sat 
together  (a).  Afterwards  (at  least  from  the  reign  of  Henry  III.), 
the  spiritual  or  ecclesiastical  courts  obtained  exclusive  jurisdictioni 
over  the  probate  of  wills  of  personal  property;  and,  as  incident  thereto, 
they  acquired  jurisdiction  (though  not  exclusive)  over  legacies  (6). 
This  latter  jurisdiction  continued  in  the  ecclesiastical  courts  until  their 
jurisdiction  over  suits  for  legacies  was  taken  away  by  the  Court  of 
Probate  Act,  1857,  s.  23,  which  provided  that,  no  suits  for  legacies  or 
suits  for  the  distribution  of  legacies  should  be  entertained  by  the  then 
newly  created  court,  or  by  any  court  or  person  whose  jurisdiction  as. 
to  matters  and  causes  testamentary  was  thereby  abolished.  The 
suits  for  legacies  and  distribution  of  residues  are  therefore  left  entirely 
to  the  Court  of  Chancery,  now  the  Chancery  Division  of  the  High 
Court. 

§  591.  In  regard  to  legacies,  it  was  finally  settled  after  some 
conflict  of  authority,  that  no  action  would  lie  at  the  common  law  to 
recover  the  amount  of  a  pecuniary  legacy,  but  that  the  remedy  was 
exclusively  in  the  courts  of  equity  (c).  But  in  cases  of  specific 
legacies  of  goods  and  chattels,  after  the  executor  has  assented  thereto, 
the  property  vested  immediately  in  the  legatee,  who  might  maintain 
an  action  at  law  for  the  recovery  thereof  (d).  And  there  are  decisionsp. 
which  establish  that  an  executor  might  be  made    liable,    upon    an 

(a)  Swinb.  on  Wills,  Pt.  6,  §  11,  pp.  430,  431,  432;  2  Black,  Coram.  491,  492;  3  id.. 
61,  96,  96  ;  Marriott  v.  Marriott,  1  Str.  667,  669,  670 ;  2  Roper  on  Legacies,  by  White,, 
ch.  25,  p.  685 ;  1  Eeeves,  Hist,  of  the  Law,  92,  308. 

(6)  3  Black.  Comm.  98;  Com.  Dig.  Prohibition,  Q.  17;  Bac.  Abr.  Legacies,  M.  r 
Atkins  V.  Hill,  Cowp.  287. 

(c)  Deeks  v.  Strutt,  5  T.  E.  690. 

(d)  Doe  V.  Guy,  8  East  120. 


254  EQUITY   JURISPRUDENCE.  [CH   X. 

admission  of  liability,  for  money  had  and  received  or  upon  an  account 
stated  in  an  action  at  law  for  the  recovery  thereof  (e). 

§  592.  The  ground  upon  which  the  general  jurisdiction  of  the 
common  law  courts  was  denied  was  the  pernicious  consequences  which 
would  follow  from  allowing  such  an  action  at  law;  for  courts  of  law, 
if  compellable  to  entertain  the  jurisdiction,  could  not  impose  any  terms 
upon  the  parties.  Thus,  for  instance,  a  suit  might  be  maintained  by 
a  husband  for  a  legacy  given  to  his  wife,  without  making  any  provision 
for  her,  or  for  her  family;  whereas,  a  court  of  equity  would  require 
such  a  provision  to  be  made  (/). 

§  593.  But  it  is  very  certain,  that  courts  of  equity  exercised  a 
concurrent  jurisdiction  with  all  other  courts  in  cases  of  legacies, 
whether  the  executor  had  assented  thereto  or  not  (g).  The  grounds 
of  this  jurisdiction  are  various.  In  the  first  place,  the  executor  is 
treated  as  a  trustee  for  the  benefit  of  the  legatees;  and,  therefore, 
as  a  matter  of  trust,  legacies  are  within  the  cognizance  of  courts  of 
equity,  whether  the  executor  has  assented  thereto  or  not.  This 
seems  a  universal  ground  for  the  jurisdiction  (h).  In  the  next  place, 
the  jurisdiction  is  maintainable  in  all  cases  where  an  account  of 
discovery  or  distribution  of  the  assets  is  sought  upon  general  principles. 
Indeed,  Lord  Mansfield  seems  to  have  thought  that  the  jurisdiction 
arose  as  an  incident  to  discovery  and  account  (i).  In  the  next  place, 
ihere  was,  in  many  cases,  the  want  of  any  adequate  or  complete 
remedy  in  any  other  court  (fc). 

§  594.  Obvious  as  some  of  these  grounds  are  to  found  a  general 
jurisdiction  in  equity  in  cases  of  legacies,  it  does  not  appear  that 
•the  jurisdiction  was  not  ordinarily  exercised  originally.  Lord  Kenyon 
indeed  has  said,  the  jurisdiction  over  questions  of  legacies  was  not 
exercised  in  equity  until  the  time  of  Lord  Chancellor  Nottingham  (1). 
In  this  remark.  Lord  Kenyon  was  probably  under  some  slight  mistake ; 
for  traces  are  found  of  an  exercise  of  the  jurisdiction  as  early  as  the 
time  of  Lord  Chancellor  EUesmere,  in  cases  where  the  defendant 
answered  the  bill,  and  took  no  exceptions ;  although  he  appears  to 
iiave  entertained  the  opinion  that  the  ecclesiastical  courts  were  more 
proper  to  give  relief  in  cases  of  legacies  (m).  But  it  is  highly 
probable  that  the  jurisdiction  was  not  firmly  established  beyond 
scontroversy   until  Lord   Nottingham's   time. 

(e)  Roper  v.  Holland,  3  A.  &  B.  99;  Hart  v.  Minors,  2  Cr.  &  M.  700;  Howard  v. 
Brownhill,  23  L.  J.  Q.  B.  23. 

(/)  Deeks  v.  Strutt,  5  T.  E.  692. 

(g)  Franco  v.  Alvares,  3  Atk.  346. 

(h)  Eoper  on  Legacies,  by  White,  ch.  25,  p.  685;  Farrington  v.  Knightley,  1  P. 
Will.  549,  554;  Wind  v.  J»%!i,  1  P.  Will.  575;  Hurst  v.  Beach,  5  Mad.  360;  Atten- 
/borough  v.  Solomon,  1913  A.  C.  76. 

(i)  Atkins  v.  Hill,  Cowp.  287,  2  Mad.  Pr.  Ch.  1,  2. 

(k)  2  Mad.  Pr.  Ch.  1,  2,  8. 

(1)  Deeks  v.  Strutt,  5  T.  E.  692. 

(m)  2  Mad.  Pr.  Ch.  1,  2. 


§  592—605.]  LEGACIES.  255 

§  595.  Indeed,  in  many  cases,  courts  of  equity  exercised  an 
exclusive  jurisdiction  in  regard  to  legacies;  as,  for  instance,  where  the 
bequest  of  the  legacy  involved  the  execution  of  trusts,  either  express 
or  implied ;  or  vi'here  the  trusts,  engrafted  on  the  bequest,  vs^ere  them- 
selves to  be  pointed  out  by  the  court. 

§  602.  In  regard  to  legacies  charged  on  land,  courts  of  equity, 
for  the  reasons  already  stated,  also  exercised  an  exclusive  jurisdiction. 
In  deciding  upon  the  validity  and  interpretation  of  purely  personal 
legacies,  courts  of  equity  implicitly  followed  the  rules  of  the  civil 
law  (n).  But  in  legacies  charged  on  land,  they  followed  the  rules 
of  the  common  law,  as  to  the  validity  and  interpretation  thereof  (o). 

§  603.  But  the  beneficial  operation  of  the  jurisdiction  of  courts  of 
equity,  in  cases  of  legacies,  is  even  more  apparent  in  some  other  cases, 
where  the  remedies  are  peculiar  to  such  courts,  and  are  protective  of 
the  rights  and  interests  of  legatees.  Thus,  for  instance,  in  cases  of 
pecuniary  legacies,  due  and  payable  at  a  future  day,  courts  of  equity 
will  compel  security  to  be  given  for  the  due  payment  thereof,'  even 
if  the  legacy  be  contingent  (p).  An  annuity  under  a  will  being  a 
legacy  payable  by  instalments,  an  annuitant  possesses  a  similar 
right  (g).  But  if  the  annuity  arises  under  an  instrument  antecedent 
to  the  will,  it  is  a  debt  and  other  considerations  apply  (r). 

§  604.  Another  class  of  cases  of  the  same  nature  is,  where  a 
specific  legacy  is  given  to  one  for  life,  and  after  his  death  to  another; 
there  the  legatee  in  remainder  was  formerly  entitled,  in  all  cases,  to 
come  into  a  court  of  equity,  and  to  have  a  decree  for  security  from 
the  tenant  for  Ufe,  for  the  due  delivery  over  of  the  legacy  to  the 
remainderman.  But  the  modem  rule  is,  not  to  entertain  such  a 
bill,  unless  there  be  some  allegation  and  proof  of  waste;  or  of  danger 
of  waste  of  the  property.  Without  such  ingredients,  the  remainder- 
man is  only  entitled  to  have  an  inventory  of  the  property  bequeathed 
to  him,  so  that  he  may  be  enabled  to  identify  it;  and,  when  his 
absolute  right  accrues,  to  enforce  a  due  delivery  of  it  (s). 

§  605.  This  may  suffice,  in  this  place,  on  the  subject  of  the  peculiar 
jurisdiction  of  courts  of  equity  in  cases  of  legacies,  when  the  relief 
sought  and  given  is  of  a  precautionary  and  protective  nature.  The 
subject  wiU  again  come  under  review  in  the  consideration  of  bills 
quia  timet  (t). 

(n)  Franco  v.  Alvares,  3  Atk.  246;  Hurst  v.  Beach,  5  Mad.  360;  2  Mad.  Pr.  Ch. 
1,  2;  2  Ponbl.  Eq.  B.  4,  Pt.  1,  ch.  1,  §  4,  and  note  (h). 

(o)  Reynish  v.  Martin,  3  Atk.  333,  334;  Paschall  v.  Ketterich,  Dyer  151  (b),  (5). 
But  see  Dyer,  264,  b. 

(p)  Webber  v.  Webber,  1  Sim.  &  S.  311;  King  v.  Maicott,  9  Hare,  692;  In  re 
Hall,  Foster  v.  Metcalfe,  [1903]  2  Ch.  226. 

(g)  In  re  Parry,  Scott  v.  Leake,  42  Ch.  D.  670. 

(r)  In  re  Hargreaves,  Dicks  v.  Hare,  44  Ch.  D.  236. 

(s)  Leeke  v.  Bennett,  1  Atk.  471 ;  Bill  v.  Kynaston,  2  Atk.  82. 

(t)  Post,  §§  844,  845,  846. 


256  EQUITY   JURISPRUDENCE.  [CH.    X, 

§  606.  In  regard  to  a  donation  mortis  causa,  which,  is  a  sort  of 
amphibious  gift  between  a  gift  inter  vivos  and  a  legacy,  it  was  not 
properly  cognizable  by  the  ecclesiastical  courts;  neither  does  it  fall 
regularly  within  an  administration;  nor  does  it  require  any  act  of  the 
executor  to  constitute  a  title  in  the  donee  (u).  It  is,  properly,  a  gift 
of  personal  property  (x),  by  a  party  who  is  in  peril  of  death,  upon 
condition,  that  it  shall  presently  helong  to  the  donee,  in  case  the  donor 
shall  die,  but  not  otherwise  (y).  A  gift  of  title-deeds  has  been  held 
to  be  effective  donation  mortis  causa  of  a  mortgage  security  (a).  But 
although  a  mortgage  involves  an  interest  in  land,  it  is  regarded  in  the 
eyes  of  a  court  of  equity  primarily  as  a  debt,  for  the  repayment  of 
which  the  land  stands  as  security  (a).  To  give  it  effect,  there  must  be 
a  delivery  of  it  by  the  donor;  and  this  delivery  may  be  antecedent  to 
the  gift  (b),  but  whatever  form  it  takes,  whether  actual  or  symbolical, 
it  is  essential  to  the  validity  of  this  form  of  gift  (c).  By  an  extension 
which  may  be  traced  historically,  many  subject  matters  which  would 
be  inadmissible  for  the  purposes  of  gifts  inter  vivos  by  tradition, 
because  they  are  not  susceptible  of  manual  delivery,  are  allowed  to  be 
proper  subject  matters  of  a  donation  mortis  causa  by  what  has  recently 
been  defined  as  an  inchoate  or  imperfect  delivery  (d).  These  gifts  are 
held  to  be  effective  notwithstanding  the  provisions  of  the  Wills  Act, 
1837  (e),  and  this  introduces  an  anomalous  state  of  things,  for  a  person 
may  establish  his  right  to  an  unlimited  amount  by  his  own  uncorrobo- 
rated evidence  (/),  whereas  if  a  testator  puts  pen  to  paper  to  make  a 
gift  of  £5  or  even  less,  the  elaborate  formalities  of  the  Wills  Act  cannot 
be  evaded. 

§  607.  The  notion  of  a  donation  mortis  caasd  was  originally  derived 
into  the  English  law  from  the  civil  law.  In  that  law  it  was  thus 
defined :  ' '  Mortis  causa  donatio  est,  quae  propter  mortis  fit  sus- 
picionem ;  cum  quis  ita  donat,  ut,  si  quid  humanitus  ei  contigisset, 
haberet  is,  qui  accepit.  Sin  autem  supervixisset  is,  qui  donavit, 
reciperit;  vel  si  eum  donationis  psenituisset,  aut  prior  decesserit  is,  cui 
donatum  sit  "  (g).     It  was  a  long  time  a  question  among  the  Eoman 

(«)  Boper,  Leg.  by  White,  ch.  1,  §  2,  p.  2;  Thompson  v.  Hodgson,  2  Str.  777; 
Ward  V.  Turner,  2  Vee.  431.  (x)  Ward  v.  Turner,  2  Ves.  439. 

iy)  Tate  v.  Hilbert,  2  Ves.  Jun.  121;  Staniland  v.  Willott,  8  Mac.  &  G.  664; 
Gosnaham  v.  Guise,  15  Moo.  P.  C.  216 ;  Treasury  Solicitor  v.  Lewis,  [1900]  2  Ch.  812. 

(z)  Dujfield  v.  Elwes,  1  Bli.  N.  S.  497. 

(o)  Thornborough  v.  Baker,  3  Swanst.  628;  Holford  v.  Yate,  1  K.  &  J.  677; 
Campbell  v.  Holyland,  7  Ch.  D.  166. 

(b)  Gain  v.  Moon,  [1896]  2  Q.  B..283. 

(c)  Jones  V.  Selby,  Free.  Ch.  200;  Bunn  v.  Markham,  7  Taunt.  224;  Mustapha 
V.  Wedlake,  [1891]  W.  N.  201;  In  re  Johnson,  Sandy  v.  Reilly,  92  L.  T.  357. 

(d)  In  re  Wasserberg,  Union  of  London  &  Smith's  Bank  v.  Wasserberg,  [1915] 
1  Ch.  195.  The  earliest  case  is  the  decision  of  the  House  of  Lords  in  Duffield  v, 
Elioes,  1  Bli.  N.  S.  497. 

(e)  Moore  v.  Darton,  4  De  G.  &  Sm.  517. 

(/)  In  re  Farman,  Farman  v.  Smith,  57  L.  J.  Ch.  637. 
(g)  Inst.  Lib.  2,  tit.  7,  §  1. 


§  606—608.]  LEGACIES.  257 

lawyers,  whether  a  donation  mortis  causa  ought  to  be  reputed  a  gift 
or  a  legacy,  inasmuch  as  it  partakes  of  the  nature  of  both  (et  utriusque 
causae  qusedam  habebat  insignia);  and  Justinian  finally  settled,  that  it 
should  be  deemed  of  the  nature  of  legacies :  ' '  Has  mortis  causa 
Donationes  ad  exemplum  legatorum  redactse  sunt  per  omnia  "  (h). 

§  607a.  According  to  the  civil  law,  a  donatio  mortis  causa  may  be 
made  subject  to  a  trust  or  condition.  "  Eorum,  quibus  mortis  causa 
donatum  est,  fidei  committi  quoquo  tempore  potest;  quod  fidei  com- 
missum,  haeredes,  salva  Falcidise  ratione,  quam  in  his  quoque  dona- 
tionibus  exemplo  legatorum,  locum  habere  placuit,  praestabunt.  Si 
pars  donationis  fidei  commisso  teneatur,  fidei  commissum  quoque 
munere  Falcidse  fungetur.  Si  tamen  alimenta  praestari  voluit, 
coUationis  totum  onus  in  residuo  donationis  esse  respondendum  erit 
ex  defuncti  voluntate,  qui  de  ma j  ore  pecunia  praestari  non  dubie  voluit, 
integra  (i).  Ab  eo,  qui  neque  legatum  neque  fidei  commissum,  neque 
haereditatem  vel  mortis  causa  donationem  acceptit  nihil  per  fidei  com- 
missum relinqui  potest  "  (fe).  In  our  courts  it  seems  to  be  established 
that  a  gift  m.ortis  causa  is  good,  although  it  is  coupled  with  a  trust  or 
condition  (l).  It  has  been  indeed  suggested  that  the  trust  or  condition 
should  be  declared  contemporaneously  with  the  gift,  or  under  circum- 
stances which  would  incorporate  the  trust  or  condition  with  the 
gift  (m-) ;  but  it  is  diificult  to  appreciate  the  grounds  upon  which  this 
opinion  is  based.  A  trust,  except  it  be  of  lands,  may  be  declared  by 
parol,  and  unless  the  recipient  assented  to  the  new  terms  the  donor 
could  resume  possession  (n). 

§  608.  It  has  been  already  stated,  that  in  the  interpretation  of 
purely  personal  legacies  courts  of  equity  follow  the  rules  of  the  civil 
law ;  and  in  those  which  are  charged  on  lands  the  rules  of  the  common 
law  (o).  But,  although  this  is  generally  true,  it  is  not  to.  be  taken 
for  granted,  that  courts  of  equity  do,  in  all  cases,  follow  the  rules  of 
courts  of  common  law,  in  deciding  upon  the  nature,  extent,  inter- 
pretation, and  effect  of  legacies.  There. are  some  cases,  in  which 
courts  of  equity  act  upon  principles  peculiar  to  themselves  in  relation 
to  legacies.  But  any  attempt  to  point  them  out  in  a  satisfactory 
manner  would  require  a  general  review  of  the  whole  doctrine  of 
legacies,  a  task  which  is  incompatible  with  the  objects  of  the  present 
Commentaries. 


(h)  Inet.  Lib.  2,  tit.  7,  §  1. 

(i)  Dig.  Lib.  31,  tit.  1,  f.  77,  §  1. 

(k)  Cod.  Lib.  6,  tit.  42,  f.  9. 

(I)  Hill  v.  Hill,  8  M.  &  W.  401. 

(m)  Dunne  v.  Boyd,  Ir.  E.  8  Eq.  609. 

(n)  Bunn  v.  Markham,  7  Taunt.  224. 

(o)  Ante,  §  602. 


J'.  .J.  17 


258  EQUITY     JURISPRUDENCE.  [CH.    XI. 


CHAPTER    XI. 


CONFUSION    OF     BOUNDARIES. 


§  609.  Having  disposed  of  the  subjects  of  Administration  and 
Legacies,  we  shall  next  proceed  to  the  consideration  of  another  head 
of  concurrent  jurisdiction,  axising  from  the  confusion  of  the  boundaries 
of  land,  and  the  confusion  or  entanglement  of  other  rights  and  claims 
of  an  analogous  nature,  calling  for  the  interposition  of  courts  of  equity, 
in  order  to  restore,  and  ascertain,  and  fix  therrt. 

§  610.  In  the  first  place,  in  regard  to  Confusion  of  Boundaries. 
The  issuing  of  commissions  to  ascertain  boundaries  is  certainly  a  very 
ancient  branch  of  equity  jurisdiction.  A  number  of  cases  of  this 
sort  will  be  found  in  the  earliest  of  the  chancery  reports.  Thus,  in 
Midlineux  v.  Mullineux,  in  14th  Jae.  I.,  a  commission  was  awarded, 
"  to  set  out  lands,  that  lye  promiscuously,  to  be  liable  for  the  payment 
of  debts."  In  Peckering  v.  Kimpton,  5  Car.  I.  (o),  a  commission  was 
awarded,  "  to  set  out  copyhold  lands  free  from  lands  which  lye 
obscured;  if  the  commissioners  cannot  sever  it,  then  to  set  out  so 
much  in  lieu  thereof. ' ' 

§  611.  It  is  not  very  easy  to  ascertain  with  exactness  the  origin 
of  this  jurisdiction  (6).  It  has  been  supposed  by  Lord  Northington 
and  Lord  Thurlow,  that  consent  was  the  ground  upon  which  it  was 
originally  exercised  (c).  There  are  two  writs  in  the  register  concerning 
the  adjustment  of  controverted  boundaries,  from  one  of  which  (in  the 
opinion  of  Sir  WiUiam  Grant)  it  is  probable  that  the  exercise  of  this 
jurisdiction  in  the  Court  of  Chancery  took  its  commencement  (d). 
The  one  is  the  writ  De  Raiionalibus  divisis,  which  properly  lies  where 
two  men  have  lands  in  divers  towns  or  hamlets,  so  that  one  is  seised 
of  the  land  in  one  town  or  hamlet,  and  the  other  of  the  land  in  the 
other  town  or  hamlet  by  himself ;  and  they  do  not  know  the  boundaries 
of  the  towns  or  hamlets,  whereby  to  ascertain  which  is  the  land  of  one 
and  which  is  the  land  of  the  other.     In  such  a  case,  to  set  the  bounds 

(a)  Tothill  39  (edit.  1649).  See  also  Wake  v.  Conyers,  1  Eden,  337,  note;  Mar- 
quis of  Bute  V.  The  Glamorganshire  Canal  Co.,  1  Phil.  681;  Co.  Litt.  169  a;  Har- 
grave's  note  23,  vii. 

(b)  Hargrave's  note  23,  vii.,  to  Co.  Litt.  169a. 

(c)  Speer  v.  Crawter,  2  Meriv.  417. 

(d)  Speer  v.  Crawter,  2  Meriv.  417;  Eegist.  Brevium,  157b. 


§  609 — 614.]  CONFUSION  OP  boundaries.  259 

certain,  this  writ  lies  for  the  one  against  the  other  (e).  The  other  writ 
is  De  Perambulcdione  facienda.  This- writ  is  sued  out  with  the  assent 
of  both  parties,  where  they  are  in  doubt  of  the  bounds  of  their  lord- 
ships or  manors  or  of  their  towns.  And  upon  such  assent,  the  writ 
issues  to  the  sheri£E  to  make  the  perambulation,  and  to  set  out  the 
bounds  and  limits  between  them  in  certainty  (/).  And  it  is  added,  in 
Fitzherbert  (in  which  he  foUows  the  rule  of  the  Begistrum  Brevium), 
that  the  perambulation  may  be  made  for  divers  towns  and  in  divers 
counties;  and  the  parties  ought  to  come  into  the  chancery,  and  there 
acknowledge  and  grant  that  a  perambulation  be  made  betwixt  them; 
and  the  acknowledgment  shall  be  enrolled  in  the  chancery,  and  there- 
upon a  commission  or  writ  shall  issue  forth. 

§  612.  Sir  William  Grant  further  conjectured  that  the  jurisdiction 
having  thus  originated  in  consent,  the  next  step  would  probably  be 
to  grant  the  commission  on  the  application  of  one  party,  who  showed 
an  equitable  ground  for  obtaining  it,  such  as  that  a  tenant  or  copy- 
holder had  destroyed,  or  not  preserved,  the  boundaries  between  his 
own  property  and  that  of  his  lessor  or  lord.  And  to  its  exercise,  on 
such  an  equitable  ground,  no  objection  has  ever  been  made  (g) ;  and, 
it  may  be  added,  no  just  objection  can  be  made. 

§  613.  This  account  of  the  origin  of  the  chancery  jurisdiction  seems 
highly  probable  in  itself;  but  however  satisfactory  it  may  seem,  it  can 
scarcely  be  said  to  afford  more  than  a  reasonable  conjecture,  and  is 
not  a  conclusive  proof  that  such  was  the  actual  origin.  In  truth, 
the  recent  discoveries  made  of  the  actual  exercise  of  chancery  juris- 
diction in  early  times,  as  disclosed  in  the  report  of  the  Parliamentary 
Commissioners,  already  referred  to  in  a  former  part  of  these  Com- 
mentaries, are  sufficient  to  teach  us  to  rely  with  a  subdued  confidence 
upon  all  such  conjectural  sources  of  jurisdiction  (h).  It  is  very 
certain  that,  in  some  cases,  the  Court  of  Chancery  has  granted 
commissions,  or  directed  issues,  on  no  other  apparent  ground  than 
that  the  boundaries  of  manors  were  in  controversy. 

§  614.  The  civil  law  was  far  more  provident  than  ours  upon  the 
subject  of  boundaries.  It  considered  that  there  was  a  tacit  agree- 
ment, or  duty,  between  adjacent  proprietors,  to  keep  up  and  preserve 
the  boundaries  between  their  respective  estates;  and  it  enabled  all 
persons  having  an  interest  to  bring  a  suit  to  have  the  boundaries 
between  them  settled,  and  this,  whether  they  were  tenants  for  years, 
usufructuaries,  mortgagees,  or  other  proprietors.  The  action  was 
called  actio  finium  regendorum ;  and  if  the  possession  was  also  in 
dispute,  that  might  be  ascertained  and  fixed  in  the  same  suit,  and, 


(e)  Pitzherb.  Nat.  Brev.  300  [128]. 
{/)  Pitzherb.  Nat.  Brev.  300  [138]. 
ig)  Speer  v.  Crawler,  2  Meriv.  417. 
(h)  Ante,  §§  37  to  44,  and  notes. 


260  EQUITY   JURISPEUDENCE.  [CH.    XI. 

indeed,  was  incident  to  it  (j).  Perhaps  it  might  not  have  been 
originally  unfit  for  courts  of  equity  to  have  entertained  the  same  general 
jurisdiction,  in  cases  of  confusion  of  boundaries,  upon  the  ground  of 
enforcing  a  specific  performance  of  the  implied  engagement  or  duty 
of  the  civil  law.  Such  a  broad  origin  or  exercise  of  the  jurisdiction 
has,  however,  never  been  claimed  or  exercised. 

§  615.  But  whatever  may  have  been  the  origin  of  this  branch  of 
jurisdiction,  it  is  one  which  has  been  watched  with  a  good  deal  of 
jealousy  by  courts  of  equity  of  late  years;  and  there  seems  no  inclina- 
tion to  favour  it,  unless  special  grounds  are  laid  to  sustain  it.  The 
general  rule  now  adopted  is,  not  to  entertain  jurisdiction,  in  cases  of 
confusion  of  boundaries,  upon  the  ground  that  the  boundaries  are  in 
controversy;  but  to  require  that  there  should  be  some  equity  super- 
induced by  the  act  of  the  parties;  such  as  some  particular  circum- 
stances of  fraud;  or  some  confusion,  where  one  person  has  ploughed 
too  near  another;  or  some  gross  negligence,  omission,  or  misconduct 
on  the  part  of  persons  whose  special  duty  it  is  to  preserve  or  perpetuate 
the  boundaries,  or  with  the  object  of  preventing  a  multiplicity  of 
suits  (k). 

§  616.  Where  there  is  an  ordinary  legal  remedy  there  is  certainly 
no  ground  for  the  interference  of  courts  of  equity,  unless  some 
peculiar  equity  supervenes  which  a  court  of  common  law  cannot  take 
notice  of  or  protect.  It  has  been  said  by  Lord  Northington  that, 
where  there  is  no  legal  remedy,  it  does  not  therefore  follow  that  there 
must  be  an  equitable  remedy,  unless  there  is  also  an  equitable  right. 
Where  there  is  a  legal  right  there  must  be  a  legal  remedy ;  and  if 
there  is  no  legal  right,  in  many  cases  there  can  be  no  equitable  one. 
On  this  account  he  dismissed  a  bill  to  settle  the  boundaries  between 
manors,  it  appearing  that  there  was  no  dispute  as  to  the  right  of  soil 
and  freehold  on  both  sides  of  the  boundary  marks  (which  right  was 
admitted  by  the  bill  to  be  in  the  defendant),  and  that  the  right 
of  seigniory  alone  (an  incorporeal  hereditament),  and  not  that  of 
the  soil,  was  in  dispute.  And  his  lordship  on  this  occasion  remarked, 
that  "  all  the  cases  where  the  court  has  entertained  bills  for  estab- 
lishing boundaries  have  been  where  the  soil  itself  was  in  qustion,  or 
where  there  might  have  been  a  multiplicity  of  suits  "  (l). 

§  617.  So,  in  a  case  where  a  bill  was  brought  by  one  parish 
against  another  to  ascertain  the  boundaries  of  the  two  parishes  in 
making  their  rates;  and  a  number  of  houses  had  been  built  upon 
land    formerly    waste;    and    it    was    doubtful    to    which    parish    each 

(t)  See  1  Domat,  B.  2,  tit.  6,  §  1,  2,  pp.  308,  309;  Co.  Litt.  169o,  Hargrave's 
note  (23);  Dig.  Lib.  10,  tit.  1,  f.  1. 

(k)  Wake  v.  Conyers,  1  Eden,  331;  Speer  v.  Crawter,  2  Meriv.  410;  Marquis  of 
Bute  V.  Glamorganshire  Canal  Co.,  1  Ph.  681;  Att.-Gen.  v.  Stephens,  6  De  G.  M. 
&  G.   111. 

(;)  Wake  V.  Conyers,  1  Eden,  331. 


§    615 — 619.]  CONFUSION  OF  BOUNDARIES.  261 

pEirfc  of  the  waste  belonged;  Lord  Thurlow  refused  to  interfere,  and 
observed  that  the  greatest  inconvenience  might  arise  from  doing  so. 
For,  if  a  commission  were  granted,  and  the  bounds  set  out  by  com- 
missioners, any  other  parties,  on  a  different  ground  of  dispute,  might 
equally  claim  another  commission.  These  other  commissioners  might 
make  a  different  return,  and  so,  in  place  of  settling  differences,  endless 
confusion  would  be  created  (w).  In  another  report  of  the  same  case, 
he  is  reported  to  have  said.  If  he  should  entertain  the  bill,  and 
direct  an  issue  in  such  a  case  as  that,  he  did  not  see  what  case 
would  be  peculiar  to  the  courts  of  law,  and  he  did  not  know  how  to 
extract  a  rule  from  The  Mayor  of  York  v.  Pilkington.  Where  there 
was  a  common  right  to  be  tried,  such  a  proceeding  was  to  be  under- 
s.tood.  That  boundary  between  the  two  jurisdictions  was  apparent. 
This  is  the  case,  where  the  tenants  of  a  manor  claim  a  right  of 
common  by  custom,  because  the  right  of  all  the  tenants  of  the  manor 
is  tried  by  trying  the  right  of  one.  But  in  the  case  before  him,  he 
saw  no  common  right,  which  the  parishioners  had  in  the  boundaries 
of  the  parish.  It  would  be  to  try  the  boundaries  of  all  the  parishes 
in  the  kingdom  on  account  of  the  poor-laws.  The  ground  of  dis- 
missing the  bill  seems,  from  these  very  imperfect  statements  of  the 
case,  to  have  been,  first,  that  the  proper  remedy  was  at  law ;  and, 
secondly,  that  no  equity  was  superinduced,  for  it  would  not  even 
suppress  multiplicity  of  suits. 

§  618.  In  Atkins  v.  Hatton  (n),  the  court  refused  to  entertain  a  bill 
brought  by  the  rector  of  a  parish  principally  for  an  account  of  tithes, 
and  to  have  a  commission  to  settle  the  boundaries  of  the  parish  and 
the  glebe.  The  court  said,  "  The  plaintiff  here  calls  upon  the  court 
to  grant  a  commission  to  ascertain  the  boundaries  of  the  parish,  upon 
the  presumption  that  all  the  lands  which  shall  be  found  within 
those  boundaries  would  be  tithable  to  him.  That  is,  indeed,  a  prima 
facie  inference ;  but  by  no  means  conclusive.  And  there  is  no 
instance  of  the  court  ever  granting  a  commission,  in  order  to  attain  a 
remote  consequential  advantage.  It  is  a  jurisdiction  which  courts  of 
equity  have  always  been  very  cautious  of  exercising.  '^'  It  is  observable, 
that  no  special  equity  was  here  set  up.  But  the  party  desired  the 
commission  solely  upon  the  ground  of  founding  a  possible  right  against 
some  persons  for  tithes,  upon  the  ground,  that  the  land  which  they 
occupied  was  intra-parochial  and  tithable.  This  was  properly  a  matter 
at  law  to  be  ascertained  by  a  special  suit  against  every  owner  or 
occupant  of  land  severally,  and  not  against  them  jointly,  in  a  bill 
to  ascertain  boundaries. 

§  619.  These  cases  are  sufficient  to  show,  that  the  existence  of  a 
controverted  boundary   by  no   means   constitutes  a   sufficient   ground 

(to)  St.  Luke's  Parish  v.  St.  Leonard's  Parish,  or  Waring  v.  Hotham,  1  Bro. 
C.  C.  40;  2  Dick.  550;  cited  2  Anst.  395.  (n)  2  Anst.  386, 


262  EQUITY   JURISPRUDENCE.  [CH.    XI. 

for  the  interposition  of  courts  of  equity,  to  ascertain  and  fix  that 
boundary.  Between  independent  proprietors  such  cases  would  be 
left  to  the  proper  redress  at  law.  It  is,  therefore,  necessary,  to 
maintain  such  a  bill  (as  has  been  already  stated),  that  some  peculiar 
equity  should  be  superinduced  (o).  In  other  words,  there  must  be  some 
equitable  ground  attaching  itself  to  the  controversy.  And  we  may, 
therefore,  inquire,  what  will  constitute  such  a  ground.  This  has 
been  in  part  already  suggested.  In  the  first  place,  it  may  be  stated, 
that  if  the  confusion  of  boundaries  has  been  occasioned  by  fraud,  that 
alone  will  constitute  a  sufficient  ground  for  the  interference  of  the 
court  (p).  And  if  the  fraud  is  established,  the  court  would  by  com- 
mission or  under  the  modern  practice,  will  by  inquiring  in  chambers, 
ascertain  the  boundaries,  if  practicable;  and,  if  not  practicable,  will 
do  justice  between  the  parties  by  assigning  reasonable  boundaries,  or 
setting  out  lands  of  equal  value  (g). 

§  620.  In  the  next  place,  it  will  be  a  sufficient  ground  for  the 
exercise  of  jurisdiction,  that  there  is  a  relation  between  the  parties, 
which  makes  it  the  duty  of  one  of  them  to  preserve  and  protect 
the  boundaries;  and  that  by  his  negligence  or  misconduct,  the  con- 
fusion of  boundaries  has  arisen.  Thus,  if,  through  the  default  of  a 
tenant,  or  a  copyholder  (who  is  under  an  implied  obligation  to  preserve 
them),  there  arises  a  confusion  of  boundaries,  the  court  will  interfere, 
as  against  such  tenant  or  copyholder,  to  ascertain  and  fix  the 
boundaries  (r).  It  has  been  said  that  a  tenant  for  life  is  under  a 
similar  obligation  to  the  remainderman  (s).  But,  it  is  indispensable 
to  establish  by  suitable  proof,  that  the  boundaries,  without  such 
assistance,  cannot  be  found  (t).  And  the  relation  of  the  parties, 
entitling  them  to  the  redress,  must  also  be  clearly  stated ;  for  where 
the  parties  claim  by  adverse  titles,  without  any  super-induced  equity, 
we  have  already  seen,  that  the  remedy  is  purely  at  law  (w). 

§  621.  In  the  next  place,  a  bill  in  equity  would  lie  to  ascertain  and 
fix  boundaries,  when  it  will  prevent  a  multiplicity  of  suits.  This 
is  an  old  head  of  equity  jurisdiction ;  and  it  has  been  very  properly 

(o)  Wake  V.  Conyers,  1  Eden,  331;  Speer  v.  Crawler,  2  Meriv.  410;  Marquis  of 
Bute  V.  Glamorganshire   Canal   Co.,  1  Ph.  681;   Att.-Gen.  v.  Stephens,  6  De  G.  M. 

6  G.  111. 

(p)  This  16  underatood  to  have  been  the  ground  of  the  decision  of  the  House  of 
Lords  in  Rous  v.  Barker,  4  Bro.  P.  C.  660,  reversing  the  decree  of  the  Exchequer  in 
the  same  cause.     See  Atkins  v.  Hatton,  2  Anst.  806. 

(q)  Speer  v.  Crawter,  2  Meriv.  418;  Godfrey  v.  Littells,  1  Euss.  &  M.  59;  2 
Ruse.  &  M.  620;   Att.-Gen  v.  Stephens,  6  De  G.  M.  &  G.  Ill;   Spike  v.   Harding, 

7  Ch.  D.  871;  Searle  v.  Cooke,  43  Ch.  D.  519. 

(r)  Duke  of  Leeds  v.  Earl  of  Strafford,  4  Ves.  180;  Att.-Gen.  v.  Fullerton,  2  Ves. 
&  B.  263;  Spike  v.  Harding,  7  Ch.  D.  871;  Searle  v.  Cooke,  43  Ch.  D.  519. 

(s)  Att.-Gen.  v.  Stephens,  6  De  G.  M.  &  G.  111. 

(t)  Miller  v.   Warmington,  1  Jac.   &  W.  484. 

(«)  Miller  v.  Warmington,  1  Jac.  &  W.  484';  Bouverie  v.  Prentice,  1  Bro.  C.  G. 
200. 


§  620 — 623.]  CONFUSION  of  boundaeies.  263 

applied  to  cases  of  boundaries  (x).  Indeed,  in  many  cases  of  this 
na,ture,  as  for  instance,  where  the  right  afieets  a  large  number  of 
persons,  such  as  a  common  right  in  lands,  or  in  a  waste  claimed  by 
parishioners,  commoners,  and  others,  where  the  boundaries  have 
become  confused  by  lapse  of  time,  accident,  or  mistEuke,  the  appro- 
priate remedy  to  adjust  such  conflicting  claims,  and  to  prevent 
expensive  and  interminable  litigation,  seems  properly  to  be  in 
equity  (y).  And  it  is  not  a  complete  answer  to  an  action  to  settle 
the  boundaries  between  two  estates,  that  they  are  situate  in  a  British 
colony  if,  in  other  respects,  the  bill  is,  from  its  frame,  properly  main- 
tainable (a),  but  it  would  seem  that  no  relief  would  be  given,  if  the 
lands  were  situate  in  a  foreign  country  (a). 

§  622.  There  are  cases  of  an  analogous  nature  (which  constitute 
the  second  class  of  cases,  arising  from  confusion  or  entanglement  of 
other  rights  and  claims  than  to  lands),  where  a  mischief,  otherwise 
irremediable,  arising  from  confusion  of  boundaries,  has  been  redressed 
in  courts  of  equity.  Thus,  where  a  rent  is  chargeable  on  lands,  and 
the  remedy  by  distress  is,  by  confusion  of  boundaries  or  otherwise, 
become  impracticable,  the  jurisdiction  of  equity  has  been  most 
beneficially  exerted  to  adjust  the  rights  and  settle  the  claims  of  the 
parties  (fe). 

§  623.  Other  illustrations  will  present  themselves  more  appro- 
priately under  other  heads,  in  the  course  of  these  Commentaries. 
One  instance,  however,  may  be  mentioned,  in  which  courts  of  equity 
administer  the  most  wholesome  moral  justice,  following  out  the 
principles  of  law,  and  that  is,  where  an  agent,  by  fraud  or  gross 
negligence,  has  confoimded  his  own  property  with  that  of  his  principal, 
so  that  they  are  not  distinguishable.  In  such  a  case,  the  whole  will 
be  treated  in  equity  as  belonging  to  the  principal,  so  far  as  it  is 
incapable  of  being  distinguished  (c). 

{x)  Wake  V.  Conyers,  1  Eden,  331;  Warring  v.  Hotham,  1  Bro.  C.  C.  40. 

(y)  Marquis  of  Bute  v.  Glamorganshire  Ganal  Co.,  1  Phil.  681. 

(2)  Carteret  v.  Petty,  2  Swanst.  323  n. ;  Perm  v.  Lord  Baltimore,  1  Ves.  444; 
Tulloch  V.  Hartley,  1  Y.  &  C.  Ch.  114.  See  Black  Point  Syndicate  v.  Eastern  Con- 
cessions, Lim.,  79  L.  T.  658. 

(a)  In  re  Hawthorne,  Graham  v.  Massey,  23  Ch.  D.  743. 

(b)  Duke  of  Bridgewater  v.  Edwards,  6  Bro.  P.  C.  368;  Duke  of  Leeds  v.  'New 
Radnor  Corp.,  2  Bro.  C.  C.  338,  518;  Basingstoke  Corp.  v.  Lord  Bolton,  3  Drew.  50. 

(c)  Lupton  V.  White,  16  Ves.  432;  In  re  Oatway,  Herstlet  v.  Oatway,  [1903] 
2  Ch.  356. 


264  EQUITY   JURISPRUDENCE.  [CII.    XII. 


CHAPTER  XII. 


DOWER. 

§  624.  Another  head  of  concurrent  equitable  jurisdiction  is  in  matters 
of  Dower.  As  dower  is  a  strictly  legal  right,  it  might  seem,  at  first 
view,  that  the  proper  remedy  belonged  to  courts  of  common  law. 
The  jurisdiction  of  courts  of  equity,  in  matters  of  dower  for  the 
purpose  of  assisting  the  widow  by  a  discovery  of  lands  or  title-deeds, 
or  for  the  removing  of  impediments  to  her  rendering  her  legal  title 
available  at  law,  has  never  been  doubted.  And,  indeed,  it  is  extremely 
difficult  to  perceive  any  just  ground  upon  which  to  rest  an  objection 
to  it,  which  would  not  apply  with  equal  force  to  the  remedial  justice 
of  courts  of  equity,  in  all  other  cases  of  legal  rights  in  a  similar 
predicament.  But  the  question  has  been  made,  how  far  courts  of 
equity  should  entertain  general  jurisdiction  to  give  general  relief  in 
those  cases  where  ihere  appears  to  be  no  obstacle  to  her  legal  remedy. 
Upon  this  question  there  has,  in  former  times,  been  no  inconsiderable 
discussion,  and  some  diversity  of  judgment.  But  the  result  of  the 
various  decisions  upon  this  subject  is,  that  courts  of  equity  assumed 
and  exercised  a  general  concurrent  jurisdiction  with  courts  of  law 
in  the  assignment  of  dower  in  all  cases  (o).  The  ground  most  commonly 
suggested  for  this  result  was,  that  the  widow  was  often  much  em- 
barrassed, in  proceedings  upon  a  writ  of  dower  at  the  conamon  law, 
a  cumbrous  process  which  has  now  been  abolished  by  statute,  to 
discover  the  titles  of  her  deceased  husband  to  the  estates  out  of  which 
she  claimed  her  dower  (the  title-deeds  being  in  the  hands  of  heirs, 
devisees,  or  trustees) ;  to  ascertain  the  comparative  value  of  different 
estates ;  and  to  obtain  a  fair  assignment  of  her  thu'd  part  (b).  In 
such  cases,  where  the  title  of  the  widow  to  her  dower  was  not 
disputed,  the  court  proceeded  directly  to  the  assignment  of  dower; 
but,  if  the  title  were  disputed,  the  widow  was  required  to  establish 
her  right  by  an  issue  at  law  (c). 

§  626.  Upon  principle,  there  would  not  seem  to  be  any  real  diffi- 
culty in  maintaining  the  concurrent  jurisdiction  in  courts  of  equity 

(a)  Curtis  v.  Gtirtis,  2  Bro.  C.  C.  620;  Mundy  v.  Mundy,  2  Vea.  Juu.  122;  s.c.  4. 
Bro.  C.  C.  294. 

(b)  Mitf.  Eq.  PI.  121-123,  by  Jeremy,  and  note  (a). 

(c)  Curtis  V.  Curtis,  2  Bro.  C.  C.  620. 


§  624—628.]  DOWER.  265 

ia  all  cases  of  dower;  for  a  case  can  scarcely  be  supposed  in  which 
the  widow  may  not  want  either  a  discovery  of  the  title-deeds,  or  of 
dowable  lands;  or  some  impediment  to  her  recovery  at  law  removed; 
or  an  account  of  mesne  profits  before  the  assignment  of  dower;  or 
a  more  full  ascertainment  of  the  relative  values  of  the  dowable 
lands ;  and  for  any  of  these  purposes  (independent  of  cases  of  accident, 
mistake,  or  fraud,  or  other  occasional  equities),  there  seems  to  be  a 
positive  necessity  for  the  assistance  of  a  court  of  equity.  And,  if  a 
court  of  equity  has  once  a  just  possession  of  the  cause  in  point  of 
jurisdiction,  there  seems  to  be  no  reason  why  it  should  stop  short 
of  giving  full  relief,  intead  of  turning  the  dowress  round  to  her 
ultimate  remedy  at  law,  which  is  often  dilatory,  and  always  expensive. 
And  the  mere  circumstance,  that  a  discovery  of  any  sort  may  be 
wanted  to  enforce  the  claim,  would,  under  such  circumstances,  seem 
to  furnish  a  sufficient  reason  why  the  jurisdiction  for  discovery  should 
carry  the  jurisdiction  for  relief  (d). 

§  627.  Lord  Eldon  has  put  this  matter  in  a  strong  light.  After 
having  remarked,  that  he  did  not  know  any  ease,  in  which  an  heir 
had  claimed,  merely  as  heir,  an  account  (of  mesne  profits),  without 
stating  some  impediment  to  his  recovery  at  law;  as,  that  the  defendant 
has  the  title-deeds  necessary  to  maintain  his  title;  that  terms  are 
in  the  way  of  his  recovery  at  law;  or  other  legal  impediments,  which 
do,  or  may  probably,  prevent  it;  upon  which  probability,  or  upon 
the  fact,  the  court  might  found  its  jurisdiction ;  he  proceeded  to  say : 
"  The  case  of  the  dowress  is  upon  a  principle  somewhat,  and  not 
entirely,  analogous  to  that  of  the  heir.  An  indulgence  has  been 
allowed  to  her  case,  upon  the  great  difficulty  of  determining  a  priori, 
whether  she  could  recover  at  law,  ignorant  of  all  the  circumstances, 
and  the  person,  against  whom  she  seeks  relief,  &c.,  having  in  his 
possession  all  the  information  necessary  to  .establish  her  rights. 
Therefore  it  is  considered  unconscientious  in  him  to  expose  her  to  all 
that  difficulty,  to-  which,  if  that  information  was  fairly  imparted,  as 
conscience  and  justice  require,  she  could  not  possibly  be  exposed  (e). 

§  628.  But  the  propriety  of  maintaining  a  general  jurisdiction  in 
equity,  in  matters  of  dower,  is  still  more  fully  vindicated  in  a  most 
elaborate  opinion  of  Lord  Alvanley,  when  Master  of  the  Eolls,  in 
a  case  which  now  constitutes  the  polar  star  of  the  doctrine.  After 
adverting  to  the  fact,  that  dower  is  a  mere  legal  demand,  and  the 
widow's  remedy  is  at  law,  he  said:  "  But  then,  the  question  comes 
whether  the  widow  cannot  come,  either  for  a  discovery  of  those  facts, 
which  may  enable  her  to  proceed  at  law;  and  on  an  allegation  of 

(d)  See  Dormer  v.  Fortescue,  3  Atk.  130,  131;  Moor  v.  Black,  Gas.  temp.  Talb. 
126;  Curtis  v.  Curtis,  2  Bro.  C.  C.  620;  Mundy  v.  Mundy,  2  Ves.  Jun.  122;  i  Bro. 
C.  0.  294. 

(e)  Pulteney  v.  Warren,  6  Ves.  89.  See  Co.  Litt.  208,  Butler's  note  (105),  as  to 
dower  in  the  case  of  a  mortgage  for  a  term  of  years. 


266  EQUITY   JURISPRUDENCE.  [CH.    XII. 

impediments  thrown  in  her  way  in  her  proceedings  at  law,  this  court 
has  not  a  right  to  assume  a  jurisdiction  to  the  extent  of  giving  her 
relief  for  her  dower;  and,  if  the  alleged  facts  are  not  positively  denied, 
to  give  her  the  full  assistance  of  the  court,  she  being,  in  conscience 
as  well  as  at  law,  entitled  to  her  dower."  He  then  proceeded  to 
state  the  reasons  why  the  widow  should  have  the  assistance  of  the 
court  by  relief,  as  well  as  by  discovery;  insisting  that  the  case  of 
the  widow  is  not  distinguishable  from  that  of  an  infant,  where  the 
relief  would  be  clearly  granted;  and  that  it  would  be  unconscientious 
to  turn  her  round  to  a  suit  at  law,  for  the  recovery  of  her  dower, 
which  must  be  supposed  to  be  necessary  for  her  to  live  upon,  when 
she  has  been  compelled  to  resort  to  equity  for  a  discovery.  And  he 
finally  concluded  by  saying,  that  the  widow  laboured  under  so  many 
disadvantages  at  law  that  she  was  fully  entitled  to  every  assistance 
that  this  court  could  give  her,  not  only  in  paving  the  way  for  her  to 
establish  her  right  at  law,  but  also  by  giving  complete  relief  when 
the  right  was  ascertained  (/). 

§  629.  Dower,  the  author  suggested,  was  highly  favoured  in  equity. 
As  dower  in  equitable  estates  was  first  conferred  by  the  Dower  Act, 
1833,  the  statement  is  open  to  doubt.  All  that  the  Court  of  Chancery 
did  was  assist  the  dowress  in  asserting  her  legal  rights. 

§  630.  Indeed,  a  bill  for  a  discovery  and  relief  has  been  maintained 
against  a  purchaser  for  a  valuable  consideration  without  notice,  upon 
the  ground  that  the  suit  for  dower  was  upon  a  legal  title,  and  not 
upon  a  mere  equitable  claim,  to  which  only  the  plea  of  a  purchase 
for  a  valuable  consideration  can  properly  apply  (g).  This  decision 
has  been  often  found  fault  with,  and,  in  some  cases,  the  doctrine 
of  it  denied.  It  has,  however,  been  vindicated,  with  great  apparent 
force,  upon  that  ground  (h). 

§  680a.  Owing  to  the  operation  of  the  Dower  Act,  1833  (3  &  4 
Will.  4,  c.  105),  questions  of  dower  do  not  often  arise,  although  they 
from  time  to  time  come  before  the  Chancery  Division.  The  dowress 
must  assert  her  claim  either  to  a  share  of  the  rents  or  to  have  lands 
assigned  to  her  within  twenty  years  after  the  husband's  death,  or  her 
claim  will  be  barred  by  her  laches,  although,  according  to  the  general 
rule,  the  Statute  of  Limitations  is  inapplicable  (t). 

(/)  Curtis  V.  Curtis,  2  Bro.  C.  C.  620,  630  to  634. 
ig)  Williams  v.  Lambe,  3  Bro.  C.  C.  264. 

(h)  Boper,  Husband  and  Wife,  446,  447.     See  Collins  v.  Archer,  1  Kuss.  &  M, 
284 ;  Ind,  Coope  d  Co.  v.  Emmerson,  12  App.  Gas.  300. 
(i)  Williams  v.  Thomas,  [1909]  1  Ch.  713. 


§    629 — 633.]  MARSHALLING    OF    SECURITIES.  267 


CHAPTER    XIII. 

MARSHALLING    OF    SECURITIES. 

§  633.  Another  head  of  concurrent  jurisdiction,  in  courts  of  equity, 
is  that  of  Marshalling  Securities  (a).  We  have  already  had  occasion, 
in  another  place,  to  consider  the  topic  of  marshalling  assets  in  cases 
of  administration,  to  which  the  present  bears  very  close  analogy ; 
ajid  also  the  doctrine  of  apportionment  and  contribution  between 
sureties,  to  which  it  also  has  a  near  relation.  The  general  principle 
is,  that,  if  one  party  has  a  lien  on,  or  interest  in,  two  funds,  or 
properties,  for  a  debt,  and  another  party  has  a  lien  on,  or  interest  in, 
one  only  of  the  funds  or  properties  for  another  debt,  the  latter  has  a 
right  in  equity  to  compel  the  former  to  resort  to  the  other  fimd,  in  the 
first  instance,  for  satisfaction,  if  that  course  is  necessary  for  the  satis- 
faction of  the  claims  of  both  parties,  wherever  it  wiM  not  trench  upon 
the  rights,  or  operate  to  the  prejudice,  of  the  party  entitled  to  the 
double  fund  (b).  There  must  be  two  funds  or  properties  actually  in 
existence.  Thus  in  the  case  of  a  company  incorporated  prior  to  the 
statutes  which  enabled  shareholders  to  limit  their  liability  in  respct 
of  debts  due  to  general  creditors,  it  was  held  that  the  policy-holders 
could  not  require  a  call  to  be  made  to  the  extent  of  the  debts  due  and 
paid  to  the  general  creditors  in  order  that  a  particular  fund  might 
be  increased  for  the  purpose  of  paying  them,  they  being  limited  in 
remedy  to  that  fund  (c).  Also,  if  A.  has  a  mortgage  upon  two 
different  estates  for  the  same  debt,  and  B.  has  a  mortgage  upon  one 
only  of  the  estates  for  another  debt,  B.  has  a  right  to  throw  A.,  in 
the  first  instance,  for  satisfaction  upon  the  security,  which  he,  B., 
cannot  touch;  at  least,  where  it  will  not  prejudice  A.'s  rights,  or 
improperly  control  his  remedies  (d).  The  expression  "  throwing  "  the 
creditor  upon  a  particular  fund  or  security  is  a  repetition  of  the 
language  of  the  cases.  But  the  inaccuracy  consists  in  defining  the 
effect  rather  than  the  means  by  which  a  particular  result  is  attained. 
It  would  be  contrary  to  an  elementary  principle  of  equity  to  interfere 
with  the  rights  of  a  creditor  for  value.     He  is  permitted  to  exercise 

(o)  Aldrich  v.  Cooper,  8  Ves.  382. 

(b)  Ibid.;  Ex  parte  Kendall,  17  Ves.  514;  In  re  Athill,  Athill  v.  AtUll,  16  Ch.  D, 
211. 

(c)  In  re  Professional  Life  Assurance,  L.  R.  3  Eq.  668. 

(d)  Gibson  v.  Seagrim,  20  Beav.  614. 


266  EQUITY   JUEISPRUDENCB.  [CH.    XII. 

impediments  thrown  in  her  way  in  her  proceedings  at  law,  this  court 
has  not  a  right  to  assume  a  jurisdiction  to  the  extent  of  giving  her 
relief  for  her  dower;  and,  if  the  alleged  facts  are  not  positively  denied, 
to  give  her  the  full  assistance  of  the  court,  she  being,  in  conscience 
as  well  as  at  law,  entitled  to  her  dower."  He  then  proceeded  to 
state  the  reasons  why  the  widow  should  have  the  assistance  of  the 
court  by  rehef,  as  well  as  by  discovery;  insisting  that  the  case  of 
the  widow  is  not  distinguishable  from  that  of  an  infant,  where  the 
reUef  would  be  clearly  granted;  and  that  it  would  be  unconscientious 
to  turn  her  round  to  a  suit  at  law,  for  the  recovery  of  her  dower, 
which  must  be  supposed  to  be  necessary  for  her  to  live  upon,  when 
she  has  been  compelled  to  resort  to  equity  for  a  discovery.  And  he 
finally  concluded  by  saying,  that  the  widow  laboured  under  so  many 
disadvantages  at  law  that  she  was  fully  entitled  to  every  assistance 
that  this  court  could  give  her,  not  only  in  paving  the  way  for  her  to 
establish  her  right  at  law,  but  also  by  giving  complete  relief  when 
the  right  was  ascertained  (/). 

§  629.  Dower,  the  author  suggested,  was  highly  favoured  in  equity. 
As  dower  in  equitable  estates  was  first  conferred  by  the  Dower'  Act, 
1833,  the  statement  is  open  to  doubt.  All  that  the  Court  of  Chancery 
did  was  assist  the  dowress  in  asserting  her  legal  rights. 

§  630.  Indeed,  a  bill  for  a  discovery  and  relief  has  been  maintained 
against  a  purchaser  for  a  valuable  consideration  without  notice,  upon 
the  ground  that  the  suit  for  dower  was  upon  a  legal  title,  and  not 
upon  a  mere  equitable  claim,  to  which  only  the  plea  of  a  purchase 
for  a  valuable  consideration  can  properly  apply  (g).  This  decision 
has  been  often  found  fault  with,  and,  in  some  cases,  the  doctrine 
of  it  denied.  It  has,  however,  been  vindicated,  with  great  apparent 
force,  upon  that  ground  (h). 

§  630a.  Owing  to  the  operation  of  the  Dower  Act,  1833  (3  &  4 
Will.  4,  c.  105),  questions  of  dower  do  not  often  arise,  although  they 
from  time  to  time  come  before  the  Chancery  Division.  The  dowress 
must  assert  her  claim  either  to  a  share  of  the  rents  or  to  have  lands 
assigned  to  her  within  twenty  years  after  the  husband's  death,  or  her 
claim  will  be  barred  by  her  laches,  although,  according  to  the  general 
rule,  the  Statute  of  Limitations  is  inapplicable  (t). 

{/)  CuHis  V.  Curtis,  2  Bro.  C.  C.  620,  630  to  634. 
(g)  Williams  v.  Lambe,  3  Bro.  C.  C.  264. 

(h)  Eoper,  Husband  and  Wife,  446,  447.     See  Collins  v.  Archer,  1  Euss.  &  M. 
284;  Ind,  Coope  d  Co.  v.  Emmerson,  12  App.  Cae.  300. 
(!)  Williams  v.  Thomas,  [1909]  1  Ch.  713. 


§    629 633.]  MARSHALLING    OF    SECURITIES.  267 


CHAPTER    XIII. 


MARSHALLING    OF    SECURITIES. 


§  633.  Another  head  of  concurrent  jurisdiction,  in  courts  of  equity, 
is  that  of  Marshalling  Securities  (a).  We  have  already  had  occasion, 
in  another  place,  to  consider  the  topic  of  marshalling  assets  in  cases 
of  administration,  to  which  the  present  bears  very  close  analogy; 
and  also  the  doctrine  of  apportionment  and  contribution  between 
sureties,  to  which  it  also  has  a  near  relation.  The  general  principle 
is,  that,  if  one  party  has  a  lien  on,  or  interest  in,  two  funds,  or 
properties,  for  a  debt,  and  another  party  has  a  lien  on,  or  interest  in, 
one  only  of  the  funds  or  properties  for  another  debt,  the  latter  has  a 
right  in  equity  to  compel  the  former  to  resort  to  the  other  fund,  in  the 
first  instance,  for  satisfaction,  if  that  course  is  necessary  for  the  satis- 
faction of  the  claims  of  both  parties,  wherever  it  wiU  not  trench  upon 
the  rights,  or  operate  to  the  prejudice,  of  the  party  entitled  to  the 
double  fund  (b).  There  must  be  two  funds  or  properties  actually  in 
existence.  Thus  in  the  case  of  a  company  incorporated  prior  to  the 
statutes  which  enabled  shareholders  to  limit  their  liability  in  respct 
of  debts  due  to  general  creditors,  it  was  held  that  the  policy-holders 
could  not  require  a  call  to  be  made  to  the  extent  of  the  debts  due  and 
paid  to  the  general  creditors  in  order  that  a  particular  fund  might 
be  increased  for  the  purpose  of  paying  them,  they  being  limited  in 
remedy  to  that  fund  (c).  Also,  if  A.  has  a  mortgage  upon  two 
different  estates  for  the  same  debt,  and  B.  has  a  mortgage  upon  one 
only  of  the  estates  for  another  debt,  B.  has  a  right  to  throw  A.,  in 
the  first  instance,  for  satisfaction  upon  the  security,  which  he,  B., 
cannot  touch;  at  least,  where  it  will  not  prejudice  A.'s  rights,  or 
improperly  control  his  remedies  (d).  The  expression  "  throwing  "  the 
creditor  upon  a  particular  fund  or  security  is  a  repetition  of  the 
language  of  the  cases.  But  the  inaccuracy  consists  in  defining  the 
effect  rather  than  the  means  by  which  a  particular  result  is  attained. 
It  would  be  contrary  to  an  elementary  principle  of  equity  to  interfere 
with  the  rights  of  a  creditor  for  value.     He  is  permitted  to  exercise 

(a)  Aldrich  v.  Cooper,  8  Ves.  382. 

(b)  Ibid. ;  Ex  ■parte  Kendall,  17  Ves.  514;  In  re  Athill,  Athill  v.  Athill,  16  Ch.  D, 
211. 

(c)  In  re  Professional  Life  Assurance,  L.  K.  3  Eq.  668. 

(d)  Gibson  v.  Seagrim,  20  Beav.  614. 


270  EQUITY   JUEISPEUDENCE.  [CH.    XIII. 

drawn,  had  not  the  preferable  creditor  intervened;  and  this  sum  is 
held  to  be  purchase  money  of  the  conveyance.  This,  construction, 
preserving  the  preferable  debt  entire  in  the  person  of  the  second 
creditor,  entitles  him  to  draw  payment  of  that  debt  out  of  the  other 
tenement.  By  this  equitable  construction  matters  are  restored  to 
the  same  state  as  if  the  first  creditor  had  drawn  his  payment  out  of 
the  separate  subject,  leaving  the  other  entire,  for  payment  of  the 
second  creditor.  Utility,  also,  concurs  to  support  this  equitable 
claim  "  (o). 

§  638.  In  this  and  the  subsequent  section  the  learned  author 
referred  to  the  right  of  a  surety  to  a  transfer  of  securities  from  the 
creditor,  and  to  insist  that  the  debtor  should  pay  off  the  debt.  With 
all  deference  to  so  learned  an  authority,  this  matter  is  hardly  pertinent 
to  the  marshalling  of  securities. 

§  640.  As  between  a  debtor  and  his  creditor,  where  the  latter  has 
a  formal  obligation  of  the  debtor,  and  also  a  security  or  a  fund,  to 
which  he  may  resort  for  payment,  there  seems  to  be  no  ground  to  say 
(at  least,  unless  some  other  equity  intervenes),  that  a  court  of  equity 
ought  to  compel  the  creditor  to  resort  to  such  fund,  before  he  asserts 
his  claim  by  a  personal  suit  against  his  debtor.  Why,  in  such  a  case, 
should  a  court  of  equity  interfere  to  stop  the  election  of  the  creditor, 
as  to  any  of  the  remedies  which  he  possesses  in  virtue  of,  or  under, 
his  contract?  There  is  nothing  in  natural  or  conventional  justice  which 
requires  it.  It  is  true  that  a  different  doctrine  has  been  strenuously 
maintained  by  very  learned  judges,  in  a  most  elaborate  manner  (p). 
But  their  opinions,  however  able,  have  been  met  by  a  reasoning 
exceedingly  cogent,  if  not  absolutely  conclusive,  on  the  other  side. 
And,  at  all  events,  the  settled  doctrine  now  seems  to  be,  in  conformity 
to  the  early,  as  well  as  the  latest,  decisions,  that  the  debtor  himself 
has  no  right  to  insist  that  the  creditor,  in  such  a  case,  should  pretermit 
any  of  his  remedies,  or  elect  between  them,  unless  some  peculiar  equity 
springs  up  from  other  circumstances  (q). 

§  641.  The  civil  law,  as  we  have  seen,  in  the  case  of  sureties, 
required  the  creditor,  in  the  first  instance,  to  pursue  his.  remedy 
against  the  debtor.  But,  if  the  surety  thought  himself  in  peril  of 
loss  by  the  delay  of  the  creditor,  he  might  compel  the  latter  to  sue 
the  debtor;  and  thus  obtain  his  indemnity.  "Fidejussor"  (says  the 
Digest  (r))  "  an,  et  prius  quam  solvat,  agere  possit,  ut  liberetur?  Nee 
tamen  semper  expectandum  est,  ut  solvat,   aut  judicio  accepto  con- 

(o)  1  Kaims,  Equity,  B.  1,  Pt.  1,  ch.  3,  §  1,  pp.  122,  123. 

(p)  See  Lord  Thurlow's  opinion  in  Wright  v.  Nutt,  3  Bro.  C.  C.  326,  and  Lord 
Loughborough  in  Folliot  v.  Ogden,  1  H.  Bl.  124.  See  also  Averall  v.  Wade,  LI.  & 
G.  temp.   Sugd.  255. 

(q)  HoUitch  v.  Mist,  1  P.  Will.  695;  Wright  v.  Simpsmi,  6  Ves.  713;  WoHhing- 
ton  V.  Abbott,  [1910]  1  Ch.  588. 

(t)  Dig.  Lib.  17,  tit.  1,  f.  38;  ante,  §§  327,  494. 


§    638 — 644.]  MARSHALLING    OF    SECURITIES.  271 

demnetur;  si  diu  in  solutione  reus  cessabit,  aut  certe  bona  sua  dissi- 
pabit;  prsesertim,  si  domi  pecuniam  fidejussor  non  habebit,  qua 
numerata  creditori,  mandati  actione  conveniat. "  This  is  a  very 
wholesome  and  just  principle  (s). 

§  642.  But  although  courts  of  equity  will  thus  administer  relief  to 
both  parties  in  cases  of  double  funds,  which  are  subject  to  the  same 
debt;  and  will,  in  favour  of  sureties,  marshal  the  securities  for  their 
benefit;  yet  this  will  be  so  done  only  in  cases  where  no  injustice  is 
done  to  the  common  debtor;  for  then  other  equities  may  intervene. 
And  the  interposition  always  supposes,  that  the  parties  seeking  aid 
are  creditors  of  the  same  common  debtor;  for  if  they  are  not,  they 
are  not  entitled  to  have  the  funds  marshalled,  in  order  to  leave  a 
larger  dividend  out  of  one  fund,  for  those  who  can  claim  only  against 
that.  The  principle  may  be  easily  illustrated,  by  supposing  the  case 
of  a  joint  debt  due  to  one  creditor  by  two  persons,  and  a  several  debt 
due  by  one  of  them  to  another  creditor.  In  such  a  case,  if  the  joint 
creditor  obtains  a  judgment  against  the  joint  debtors,  and  the  several 
creditor  obtains  a  subsequent  judgment  against  his  own  several  debtor; 
a  court  of  equity  will  not  compel  the  joint  creditor  to  resort  to  the 
funds  of  one  of  the  joint  debtors,  so  as  to  leave  the  second  judgment 
in  full  force  against  the  funds  of  the  other  several  debtor.  At  least, 
it  will  not  do  so,  unless  it  should  appear  that  the  debt,  though  joint 
in  form,  ought  to  be  paid  by  one  of  the  debtors  only ;  or  there  should 
be  some  other  supervening  equity. 

§  643.  Another  case  has  been  put,  of  a  similar  nature,  by  Lord 
Eldon.  "  We  have  gone  this  length"  (said  he):  "If  A.  has  a  right 
to  go  upon  two  funds,  and  B.  upon  one,  having  both  the  same  debtor, 

A.  shall  take  payment  from  that  fund,  to  which  he-  can  resort  exclu- 
sively, that,  by  those  means  of  distribution,  both  may  be  paid.  That 
takes  place,  where  both  are  creditors  of  the  same  person,  and  have 
demands  against  funds,  the  property  of  the  same  person.  But  it  was 
never  said,  tha.t,  if  I  have  a  demand  against  A.  and  B.,  a  creditor  of 

B.  shall  compel  me  to  go  against  A.,  without  more;  as  if  B.  himself 
could  insist,  that  A.  ought  to  pay  in  the  first  instance,  as  in  the 
ordinary  case  of  drawer  and  acceptor,  or  principal  and  surety,  to  the 
intent,  that  all  obligations  arising  out  of  these  complicated  relations 
may  be  satisfied.  But  if  I  have  a  demand  against  both,  the  creditors 
of  B.  have  no  right  to  compel  me  to  seek  payment  from  A.,  if  not 
founded  in  some  equity,  giving  B.  the  right  for  his  own  sake,  to 
compel  me  to  seek  payment  from  A  "  (t). 

§  644.  Upon  this  ground,  where  there  was  a  partnership  of  five 
persons,  one  of  whom  died,  and  the  other  four  partners  continued  the 

(s)  See  the  learned  opinion  of  Mr.  Chancellor  Kent  in  Campbell  v.  Macomb, 
4  Johns.  538. 

(t)  Ex  parte  Kendall,  17  Ves.  520;  Solicitors  and  General  Insce.  v.  Lamb,  2  De 
G.  J.  &  S.  251. 


272  EQUITY   JURISPRUDENCE.  [CH.    XIII, 

partnership,  and  afterwards  became  bankrupt;  and  the  creditors  of 
the  four  surviving  partners  sought  to  have  the  debts  of  the  five  paid 
out  of  the  assets  of  the  deceased  partner,  so  that  the  dividend  of  the 
estate  of  the  four  bankrupts  might  be  thereby  increased  in  favour  of 
their  exclusive  creditors;  without  showing,  that  the  assets  of  the 
deceased  partner  ought,  as  between  the  partners,  to  pay  those  debts, 
or  that  there  was  any  other  equity  to  justify  the  claim;  the  court 
refused  the  relief  («).  On  that  occasion,  the  Lord  Chancellor  (x)  said : 
That,  even  if  it  was  clear  that  the  creditors  of  the  five  partners  could 
go  against  the  separate  assets  of  the  deceased  partner  (which,  of 
course,  depended  upon  equitable  circumstances,  as  the  legal  remedy 
was  against  the  survivors  only);  yet,  if  it  was  not  clear  that  the 
survivors  had  a  right  to  turn  the  creditors  of  the  five  against  those 
assets,  it  did  not  advance  the  claim,  that,  without  such  arrangement, 
the  creditors  of  the  four  would  get  less.  Unless  the  latter  could 
establish,  that  it  is  just  and  equitable,  that  the  estate  of  the  deceased 
partner  should  pay  in  the  first  instance,  they  had  no  right  to  compel 
a  creditor  to  go  against  that  estate,  who  had  a  right  to  resort  to  both 
funds.  Indeed,  there  might  exist  an  opposite  equity :  that  of  com- 
pelling the  creditor  to  go  first  against  the  property  of  the  survivors, 
before  resorting  to  the  estate  of  the  deceased  partner. 

§  645.  The  ground  of  all  these  decisions  is  the  same  general 
doctrine  already  suggested,  though  the  application  of  that  doctrine 
is  necessarily  varied  by  the  circumstances.  Where  a  creditor  has  a 
right  to  resort  to  two  persons  who  are  his  joint  and  several  debtors, 
he  is  not  compellable  to  yield  up  his  remedy  against  either,  since  he 
has  a  right  to  stand  upon  the  letter  and  spirit  of  his  contract,  unless 
some  supervening  equity  changes  or  modifies  his  rights.  If  each 
debtor  is  equally  bound  in  equity  and  justice  for  the  debt,  as  in  the 
case  of  joint  debtors  or  partners,  where  both  have  had  the  full  benefit 
of  the  debt,  the  interference  of  a  court  of  equity,  to  change  the 
responsibility  from  both  debtors  or  partners  to  one,  would  seem  to  be 
utterly  without  any  principle  to  support  it,  unless  there  was  a  duty  in 
one  of  the  debtors  or  partners  to  pay  the  debt  in  discharge  of  the 
other.  And,  if  this  be  so,  a  fortiori,  the  creditors  of  one  of  the 
debtors,  or  partners,  cannot  be  entitled  to  such  interference  for  their 
own  benefit;  for  they  can,  in  no  just  sense,  in  such  a  case,  work  out 
any  right,  except  through  the  equity  of  the  debtor  or  partner  under 
whom  their  title  is  derived. 

(u)  Ex  parte  Kendall,  17  Ves,  614.  (x)  Lord  Eldoc 


§  645,  646.]  PAKTiTiON.  273 


CHAPTER  XIV. 

PARTITION. 

§  646.  Another  head  of  concurrent  jurisdiction  is  that  of  Partition 
in  cases  of  real  estate  by  joint  tenants,  tenants  in  common,  and 
coparceners.  It  is  not  easy,  as  has  been  well  observed  by  Mr. 
Fonblanque,  to  trace  back  or  establish  the  origin  of  any  branch  of 
equitable  jurisdiction  (a).  But  the  jurisdiction  of  courts  of  equity  to 
partition  freehold  lands,  including  manors  and  manorial  rights  (fe),  for 
it  did  not  extend  to  copyhold  or  customary  lands  (c),  is,  beyond  ques- 
tion, very  ancient  (d).  It  is  curious  enough  to  observe  the  terms  of 
apparent  indignatiQn  with  which  Mr.  Hargrave  has  spoken  of  this 
jurisdiction,  as  if  it  were  not  only  new,  but  a  clear  usurpation.  Yet 
he  admits  its  existence  and  practical  exercise  as  early  as  the  reign  of 
Queen  Elizabeth  (e) — a  period  so  remote  that  at  least  one-half  of  the 
law,  which  is  at  present,  by  way  of  distinction,  called  the  common 
law,  and  regulates  the  rights  of  property  and  the  operation  of  eon- 
tracts,  and  especially  of  commercial  contracts,  has  had  its  origin  since 
that  time.  "A  new  and  compulsory  mode  of  partition  (says  Mr. 
Hargrave)  has  sprung  up,  and  is  now  fully  established,  namely,  by 
decree  of  chancery,  exercising  its  equitable  jurisdiction  on  a.  bill  filed, 
praying  for  a  partition,  in  which  it  is  usual  for  the  court  to  issue  a 
commission  for  the  purpose  to  various  persons  who  proceed  without  a 
jury.  How  far  this  branch  of  equitable  jurisdiction,  so  trenching  upon 
the  writ  of  partition,  and  wresting  from  a  court  of  common  law  its 
ancient  exclusive  jurisdiction  of  this  subject,  might  be  traced  by 
examining  the  records  of  chancery,  I  know  not.  But  the  earliest 
instance  of  a  bill  of  partition,  I  observe,  to  be  noticed  in  the  printed 
books,  is  a  case  of  the  48th  Elizabeth,  in  Tothill's  Transactions  of 
Chancery,  title  "  Partition  "  (/).  According  to  this  short  report  of  the 
case,  the  court  interfered  from  necessity,  in  respect  of  the  minority  of 
one  of  the  parties,  the  book  expressing  that,  on  that  account,  he  could 
not  be  made  a  party  to  a  writ  of  partition;  which  reason  seems  very 
inaccurate;  for,  if  Lord  Coke  is  right,  that  writ  doth  lie  against  an 

(a)  1  Fonbl.  Bq.  B.  1,  ch.  1,  §  3,  note  (/). 
(6)  Hanbury  v.  Hussey,  14  Beav.  152. 

(c)  Jope  V.  Morshead,  6  Beav.  213. 

(d)  See  generally  Agar  v.  Fairfax,  17  Ves.  533. 

(e)  See  Mr.  Fonblanque'a  remarks  on  the  passage,  1  Fonbl.  Eq.  B.  1,  ch.  1,  §  3, 
note  (/).  (/)  Speke  v.  Walrond,  dc.  (o),  Tothill's  Trans.  155  (edit.  1649). 

E.J.  18 


274  EQUITY    JDEISPRDDENCE.  [CH.    XIV. 

infant,  and  he  shall  not  have  his  age  in  it,  and  after  judgment  he  is 
bound  by  the  partition  (g).  But  probably,  in  Lord  Coke's  time,  this 
was  a  rare  and  rather  unsettled  mode  of  compelling  partition;  for,  I 
observe,  in  a  case  in  chancery,  of  the  6th  Charles  I.,  which  was  referred 
to  the  judges  on  a  point  of  law  between  two  coparceners,  that  the 
judges  certified  for  issuing  a  writ  of  partition  between  them,  and  that 
the  court  ordered  one  accordingly;  which,  I  presume,  would  scarcely 
have  been  done  if  the  decree  for  partition  and  a  commission  to 
make  it  had  then  been  a  current  and  familiar  proceeding  with, 
chancery  (h).  However,  it  appears  by  the  language  of  the  court  in 
a  very  important  cause,  in  which  the  grand  question  was,  whether  the 
Lord  Chancellor  here  could  hold  plea  of  a  trust  of  lands  in  Ireland  that, 
in  the  reign  of  James  II.,  bills  of  partition  were  become  common  "  (i). 

§  647.  These  remarks  of  the  learned  author  are  open  to  much 
criticism,  if  it. were  the  object  of  these  commentaries  to  indulge  in 
such  a  course  of  discussion.  It  cannot,  however,  escape  notice  that, 
when  the  learned  author  speaks  of  this  branch  of  equitable  jurisdiction 
as  trenching  upon  the  writ  of  partition,  and  wresting  from  the  courts  of 
common  law  their  ancient  exclusive  jurisdiction  over  the  subject, 
he  assumes  the  very  matter  in  controversy.  That  the  writ  of  partition 
is  a  very  ancient  course  of  proceeding  at  the  common  law  is 
not  doubted.  But  it  by  no  means  follows,  that  the  courts  of 
common  law  had  an  exclusive  jurisdiction  over  the  subject  of ' 
partition.  The  contrary  may  fairly  be  deemed  to  have  been  the  case, 
from  the  notorious  inadequacy  of  that  writ  to  attain,  in  many  cases, 
the  purposes  of  justice.  Thus,  for  instance,  we  know  that  until  the 
reign  of  Henry  VII.  no  writ  of  partition  lay,  except  in  the  case  of 
parceners.  Littleton  (§  264)  expressly  says,  "  For,  such  a  writ  lyeth  by 
parceners  only."  And  to  show  how  nan-owly  the  whole  remedial 
justice  of  this  writ  was  construed,  it  was  the  known  settled  doctrine, 
that,  if  "  two  coparceners  be,  and  one  should  aliene,  in  fee,  the 
remainder  parcener  might  bring  a  writ  of  partition  against  the  alienee ; 
but  the  alienee  could  not  have  such  a  writ  against  the  parcener.  And 
the  like  diversity  existed  in  cases  of  a  writ  of  partition  by  or  against  a 
tenant  by  the  curtesy  "  (fc).  Now,  such  a  case  would,  upon  the  very 
face  of  it,  constitute  a  clear  case  for  the  interposition  of  a  court  of 
chancery;  upon  the  ground  of  the  total  defect  of  any  remedy  at  law, 
and  yet  of  an  unquestionable  equitable  right  to  partition.  Cases  of 
joint  tenancy  and  tenancy  in  common  afford  equally  striking  illustra- 
tions. Until  the  statute  of  31  Henry  8,  c.  1,  and  32  Henry  8,  c.  32,  no 
writ  of  partition  lay  at  law  for  a  joint-tenant  or  tenant  in  common  (I). 
And  yet  the  grossest  injustice  might  have  arisen,  if  a  court  of  chancery 
could  not  in  such  a  case  have  interposed  and  granted  relief,  upon  the 

ig)  Co.  Litt.  171  b.  (h)  Drury  v.  Drury,  1  Ch.  Eep.  49. 

(t)  Hargrave's  note  (2)  to  Co.  Litt.  169  d.  (h)  Co.  Litt.  175  a. 

{/)  Co.  Litt.  175  a;  2  Black.  Coram.  185;  Cora.  Dig.  Parcener,  C.  6. 


§  647—649.]  PARTITION.  275 

analogy  to  the  legal  remedy.  The  reason  given  at  the  common  law 
against  partition  in  such  cases  was  more  specious  than  solid.  It  was, 
that  a  joint  tenancy  being  an  estate  originally  created  by  the  act  or 
agreement  of  the  parties,  the  law  would  not  permit  any  one  or  more  of 
the  tenants  to  destroy  the  united  possession  without  a  similar  universal 
consent.  The  good  sense  of  the  doctrine  would  rather  seem  to  be,  that 
the  joint  tenancy  being  created  by  the  act  or  agreement  of  the  parties, 
in  a  case  capable  of  a  severance  of  interest,  the  joint  interest  should 
continue  (exactly  as  in  cases  of  partnership)  so  long  as,  and  no  longer 
than,  both  parties  should  consent  to  its  continuance. 

§  648.  Mr.  Justice  Blackstone  has  cited  the  civil  law,  as  con- 
firmatory of  the  reasoning  of  the  common  law :  ' '  Nemo  enim  invitus 
compellitur  ad  communionem  "  (m).  But  that  law  deemed  it  against 
good  morals  to  compel  joint  owners  to  hold  a  thing  in  common;  since 
it  could  not  fail  to  occasion  strife  and  disagreement  among  them. 
Hence,  the  acknowledged  rule  was,  "In  communione  vel  societate 
nemo  compellitur  invitus  detineri "  (n).  And,  therefore,  a  decree  of 
partition  might  always  be  insisted  on,  even  when  some  of  the  part- 
owners  did  not  desire  it.  "  Communi  dividend©  judicium  ideo  neces- 
sarium  fuit,  quod  p>-o  socio  actio  magis  ad  personales  invicem  prsesta- 
tiones  pertinet,  quam  ad  communem  rerum  divisionem  (o).  Etsi  non 
omnes,  qui  rem  communem  habent,  sed  certi  ex  his  dividere  desiderant, 
hoc  judicium  inter  eos  accipi  potest  "  (p). 

§  649.  But,  independently  of  considerations  of  this  sort,  which 
might  have  brought  many  cases  of  partition  into  the  Court  of  Chancery, 
in  very  early  times,  from  the  manifest  defect  of  any  remedy  at  law, 
there  must,  have  been  many  oases,  where  bills  for  partition  were 
properly  entertainable  upon  the  ordinary  ground  of  a  discovery  wanted, 
or  of  other  equities,  intervening  between  the  parties  (q).  Lord  Lough- 
borpugh,  upon  one  occasion,  said  that  there  is  no  original  jurisdiction 
in  chancery  in  partition,  which  is  a  proceeding  at  the  common  law  (r). 
This  may  be  true  sub  modo,  where  the  party  is  completely  remediable 
at  law;  but  not  otherwise.  On  another  occasion  his  lordship  said :  "  A 
party,  choosing  to  have  a  partition,  has  the  law  open  to  him;  there  is 
no  equity  for  it.  But  the  jurisdiction  of  this  court  obtained  upon  a 
principle  of  convenience.  It  is  not  for  the  court  to  say,  one  party  shall 
not  hold  his  estate,  as  he  pleases ;  but  another  person  has  also  the  same 
right  to  enjoy  his  part,  as  he  pleases;  and,  therefore,  to  have  the  estate 
divided.  The  law  has  provided,  that  one  shall  not  defeat  the  right  of 
the  other  to  the  divided  estate.     Then  the  only  question  is,  whether 

(m)  Dib.  Lib.  12,  tit.  6,  f.  26,  §  4 ;  2  Black.  Comm.  185,  note  (c). 
(n)  Cod.  Lib.  3,  tit.  37,  f.  5  ult. 
(o)  Dig.  Lib.  10,  tit.  3,  f.  1. 

(p)  Dig.  Lib.  10,  tit.  3,  f.  8;  Fulbeck's  Parallel,  B.  2,  pp.  57,  68;  Brsk.  Inst. 
B.  3,  tit.  3,  §  56;  1  Stair's  Inst.  48. 

(q)  See  Watson  v.  Duke  of  Northumberlavd,  11  Ves.  155,  arguendo. 
(r)  Mundy  v.  Mundy,  2  Ves.  Jun.  124. 


276  EQUITY   JURISPRUDENCE.  [CH.    XIV. 

the  legal  mode  of  proceeding  is  so  convenient,  as  the  means  this  court 
affords,  to  settle  the  interests  between  them  with  perfect  fairness  and 
equality?  It  is  evident  that  the  commission  is  much  more  convenient 
than  the  writ;  the  valuation  of  these  proportions  is  much  more  con- 
sidered: the  interests  of  all  parties  are  much  better  attended  to;  and 
it  is  a  work  carried  on  for  the  common  benefit  of  both  "  (s). 

§  650.  This  language  (it  must  certainly  be  admitted)  is  sufficiently 
loose  and  general.  But  it  appears  to  be  by  no  means  a  just  description 
of  the  true  nature  and  reason  of  the  jurisdiction  of  courts  of  equity  in 
oases  of  partition.  It  is  not  a  jurisdiction  founded  at  all  in  mere  con- 
venience; but  in  the  judicial  incompetency  of  the  courts  of  common 
law,  to  furnish  a  plain,  complete,  and  adequate  remedy  for  such  cases ; 
for  the  writ  of  partition  at  the  common  law  was  a  real  action,  a  cum- 
brous, oppressive,  and  highly  technical  form  of  procedure  finally 
abohshed  by  statute  3  &  4  WiU.  4,  c.  27,  s.  36.  After  that  date  the 
jurisdiction  of  the  Court  of  Chancery  became  exclusive,  and  is  now 
vested  in  the  Chancery  Division  of  the  High  Court  by  section  34,  sub- 
section 3  of  the  Judicature  Act,  1873  (36  &  37  Vict.  c.  66).  The  true 
ground  is  far  more  correctly  stated  by  Lord  Eedesdale,  in  his  admirable 
treatise  on  Pleadings  in  Equity.  "  In  eases  of  partition  of  an  estate," 
says  he,  "  if  the  titles  of  the  parties  are  in  any  degree  complicated, 
the  difficulties  which  have  occurred  in  proceeding  at  the  common  law 
have  led  to  applications  to  courts  of  equity  for  partitions,  which  are 
efieoted  by  first  ascertaining  the  rights  of  the  several  persons  interested ; 
and  then  issuing  a  commission  to  make  the  partition  required;  and, 
upon  the  return  of  the  commissioners,  and  confirmation  of  that  return 
by  the  court,  the  partition  is  finally  completed  by  mutual  conveyances 
of  the  allotments  made  to  the  several  parties  "  (i).  According  to  the 
modern  practice,  the  rights  of  the  parties  are  adjusted  by  means  of  a 
reference  to  chambers. 

§  651.  The  ground,  here  stated,  is  of  a  complication  of  titles,  as 
the  true  foundation  of  the  jurisdiction.  But  it  is  not  even  here 
expressed  with  entire  legal  precision.  However  complicated  the  titles 
of  the  parties  might  be,  still,  if  they  could  be  thoroughly  investigated 
at  law,  in  the  usual  course  of  proceedings  in  the  common-law  courts, 
there  would  seem  to  be  no  sufficient  reason  for  transferring  the  juris- 
diction of  such  cases  to  the  courts  of  equity.  The  true  expression  of 
the  doctrine  should  have  been,  that  courts  of  equity  interfere  in  cases 
of  such  a  complication  of  titles,  because  the  remedy  at  law  is  inadequate 
and  imperfect,  without  the  aid  of  a  court  of  equity  to  promote  a  dis- 
covery, or  to  remove  obstructions  to  the  right,  or  to  grant  some  other 
equitable  redress  (u). 

(s)  Cahnady  v.  Calmady,  2  Ves.  Jrrn.  570.  See  also  Baring  v  Nash,  1  Ves  & 
B.  555. 

(t)  Mitford,  Eq.  PI.  by  Jeremy,  120;  1  Fonbl.  Eq.  B.  1,  ch.  1,  §  3,  note  (/), 
pp.  120,  121.  (m)  Agar  v.  Fairfax,  17  Ves.  533. 


§  650 — 654.]  PARTITION.  277 

§  652.  "  Partition  at  law  "  (said  Lord  Eedesdale),  "  and  in  equity, 
are  different  things.  The  first  operates  by  the  judgment  of  a  court 
of  law,  and  delivering  up  possession  in  pursuance  of  it;  which  con- 
cludes all  the  parties  to  it.  Partition  in  equity  proceeds  upon 
conveyances  to  be  executed  by  the  parties;  and,  if  the  parties  be  not 
competent  to  execute  the  conveyances,  the  partition  cannot  be  effec- 
tually had  "  {x).  Hence,  if  the  infancy  of  the  parties,  or  other 
circumstances,  prevented  such  mutual  conveyances,  the  decree  could 
only  extend  to  make  the  partition,  give  possession,  and  order  enjoyment 
accordingly,  until  eSectual  conveyances  could  be  made.  If  the  defect 
arose  from  infancy,  the  infant  must  have  had  a  day  after  attaining 
twenty-one  years  to  show  cause  against  the  decree.  If  a  contingent 
remainder,  not  barrable  or  extinguishable,  were  limited  to  a  person  not 
in  existence,  the  conveyance  could  not  be  made  until  he  came  into 
being,  and  was  capable,  or  until  the  contingency  was  determined.  An 
executory  devisee  might  occasion  a  similar  embarrassment.  And,  in 
either  of  these  cases,  a  supplemental  bill  was  necessary  to  carry  the 
original  decree  into  execution  (y).  The  difficulties  indicated  have  been 
removed  by  legislation  the  effect  of  which  will  be  discussed  hereafter. 

§  653.  It  is  upon  this  account,  that  Lord  Hardwicke  has  spoken 
of  the  remedy  by  partition  in  equity,  as  being  discretionary,  and  not 
a  matter  of  right  in  the  parties.  "Here"  (said  he)  "the  reason" 
(that  the  plaintiff  should  show  a  title  in  himself,  and  not  allege, 
generally,  that  he  is  in  possession  of  a  moiety  of  the  land)  "  is  because 
conveyances  are  directed,  and  not  a  partition  only,  which  makes  it 
discretionary,  in  this  court,  where  a  plaintiff  has  a  legal  title  (whether) 
they  (it)  will  grant  a  partition  or  not;  and  where  there  are  suspicious 
circumstances  in  the  plaintiff's  title,  the  court  will  leave  him  to 
law"  (z).  His  lordship  was  here  speaking  of  legal  titles;  for,  in  the 
same  case,  he  expressly  stated,  that,  where  the  bill  for  a  partition  was 
founded  on  an  equitable  title,  a  court  of  equity  might  determine  it;  or 
otherwise,  there  would  be  no  remedy  (a).  And,  indeed,  if  there  are  no 
suspicious  circumstances,  but  the  title  is  clear  at  law,  the  remedy  for  a 
partition  in  equity  is  as  much  a  matter  of  right,  as  at  law  (b). 

§  654.  In  regard  to  partitions,  there  was  also  another  distinct 
ground  upon  which  the  jurisdiction  of  courts  of  equity  was  maintain- 
able, as  it  constituted  a  part  of  its  appropriate  and  peculiar  remedial 
justice.  It  is,  that  courts  of  equity  were  not  restrained,  as  courts  of 
law  were,  to  a  mere  partition  or  allotment  of  the  lands  and  other  real 
estate  between  the  parties,  according  to  their  respective  interests  in 

{x)  Whaley  v.  Dawson,  2  Sch.  &  Lefr.  371,  372. 
iy)  Mitford,  Eq.  PI.  by  Jeremy,  120,  121. 
(z)  Cartwright  v.  Pultney,  2  Atk.  380. 

(a)  Cartwright  v.  Pultney,  2  Atk.  380. 

(b)  Baring  v.  Nash,  1  Ves.  &  B.  555,  556;  Parker  v.  Gerrard,  Ambler  236,  and 
Mr.  Blunt 's  note. 


278  EQUITY   JURISPRUDENCE.  [CH.    XIV. 

the  same,  and  having  regard  to  the  true  value  thereof;  but  courts 
of  equity  might,  with  a  view  to  the  more  convenient  and  perfect 
partition  or  allotment  of  the  premises,  decree  a  pecuniary  compen- 
sation to  one  of  the  parties  for  owelty  or  equality  of  partition,  so  as  to 
prevent  any  injustice  or  unavoidable  inequality  (c).  This  a  court  of 
common  law  was  not  at  liberty  to  do;  for  when  a  partition  was 
awarded  by  such  a  court,  the  exigency  of  the  writ  was,  that  the 
sheriff  should  cause,  by  a  jury  of  twelve  men,  a  partition  to  be  made 
of  the  premises  between  the  parties,  regard  being  had  to  the  true  value 
thereof;  without  any  authority  to  mate  compensation  for  any  in- 
equality in  any  other  manner  (d).  This  was  in  itself  a  sufficient 
ground  of  equity  jurisdiction. 

§  655.  Cases  of  a  different  nature,  involving  equitable  compensa- 
tion, to  which  a  court  of  law  is  utterly  inadequate,  may  easily  be  put; 
such,  for  instance,  as  cases,  where  one  party  has  laid  out  large  sums 
in  improvements  on  the  estate.  For,  although,  under  such  circum- 
stances, the  money  so  laid  out  does  not,  in  strictness,  constitute  a 
lien  on  the  estate  (e) ;  yet,  a  court  of  equity  will  not  grant  a  partition 
without  first  directing  an  account,  and  compelling  the  party  applying 
for  partition  to  make  due  compensation  (/).  So,  where  one  tenant  in 
common  has  been  in  personal  occupation  or  in  the  exclusive  per- 
ception of  the  rents  and  profits,  on  a  bill  for  a  partition,  the  court  will 
fix  him  with  an  occupation  rent  or  direct  an  account  of  the  rents  and 
profits  received  (g).  So,  where  one  tenant  in  common,  supposing 
himself  to  be  legally  entitled  to  the  whole  premises,  has  erected 
valuable  buildings  thereon,  he  will  be  entitled  to  an  equitable  partition 
of  the  premises,  so  as  to  give  him  the  benefit  of  his  improvements; 
or  if  that  cannot  be  done,  he  will  be  entitled  to  a  compensation  for 
those  improvements  (h). 

§  656.  Indeed,  in  a  great  variety  of  eases,  especially  where  the 
property  is  of  a  very  complicated  nature,  as  to  rights,  easements, 
modes  of  enjoyment,  and  interfering  claims,  the  interposition  of  a  court 
seems  indispensable  for  the  purposes  of  justice.  For  since  partition 
is  ordinarily  a  matter  of  right,  no  difficulty  in  making  a  partition  is 

(c)  Co.  Litt.  176  a  and  fc  ;  ibid.  168  a.  See  Earl  of  Clarendo7i  v.  Hornby,  1  P.  "Will. 
446;  Warner  v.  Baynes,  Ambler  589;  Storey  v.  Johnson-,  2  Y.  &  C.  586;  Mole  v. 
Mansfield,  15  Sim.  41. 

(d)  Kay  v.  Johnston,  21  Beav.  536. 

(e)  Co.  Litt.  167  a;  Com.  Dig.  Pleader,  3  F.  4.  Littleton  (§  251)  has  spoken  of 
a  rent-charge  in  cases  of  partition  for  owelty  or  equality  in  partition.  But  this  not 
in  a  case  of  compulsory  partition  by  writ;  but  of  a  voluntary  partition  by  deed  cr 
parol,  as  the  context  abundantly  shows.     Co.  Litt.  169  b ;  Litt.  §  260,  852. 

(/)  Swan  V.  Swan,  8  Price  518;  In  re  Jones,  Farrington  v.  Forester,  [1893]  2  Oh. 
461. 

(g)  Hill  V.  Fulbrook,  1  Jac.  574;  Pascoe  v.  Swan,  27  Beav.  508;  Teasdale  v. 
Sanderson,  33  Beav.  634. 

(h)  See  Parker  v.  Trigg,  W.  N.  (1874),  p.  27;  Watson  v.  Gass,  51  L.  J.  Ch.  480; 
Williams  v.  Williams,  68  L.  J.  Ch.  628;  Kenrick  v.  Mountstephen,  48  W.  B.  141. 


§  655—658.]  PARTITION.  279 

allowed  to  prevail  in  equity,  whatever  may  be  the  case  at  law,  as  the 
powers  of  the  court  are  adequate  to  a  full  and  just  compensatory 
adjustment  (i).  There  have  been  cases  disposed  of  in  equity  which 
seemed  almost  impracticable  for  allotment  at  law,  as  in  the  case  of 
the  Cold  Bath  Fields,  in  which  Lord  Hardwicke  did  not  hesitate  to 
act,  notwithstanding  the  admitted  difficulties  (fc).  The  Court  of 
Chancery  would  order  a  partition  if  there  were  parties  before  the  court, 
who  possessed  competent  present  interests,  such  as  a  tenant  for  life, 
or  for  years  (Z);  but  not  parties  entitled  in  reversion  or  remainder 
expectant  upon  a  present  interest  (m),  and  the  order  so  made  was 
binding  upon  those  parties  only  who  were  before  the  court,  and  those 
whom  they  virtually  represent  as  parties  entitled  in  remainder  although 
not  yet  in  existence  (n) :  and  the  interests  of  third  persons  are  not 
affected  (o).  And  it  is  not  an  unimportant  ingredient  in  the  exercise 
of  equity  jurisdiction,  in  cases  of  partition,  that  the  parties  in  interest 
may  be  brought  before  the  court,  far  more  extensively  than  they  can 
be  by  any  processes  known  to  the  courts  ofi  law,  for  the  purpose  of 
doing  complete  justice  (p).  It  is  no  longer  necessary  to  make  all 
persons  interested  parties  to  the  proceedings  in  the  first  instance  (g). 

§  657.  In  equity,  too  (and  it  would  seem  that  the  same  rule 
prevails  at  law,  though  this  has  sometimes  been  doubted),  where 
there  are  divers  parcels  of  lands,  messuages,  and  houses,  partition  need 
not  be  made  of  each  estate  separately,  so  as  to  give  to  each  party 
his  moiety  or  other  portion  in  every  estate.  But  the  whole  of  one 
estate  may  be  allotted  to  one,  and  the  whole  of  another  estate  to  the 
other,  provided  that  his  equal  share  is  allotted  to  each  (?■).  But  it  is 
obvious  that,  at  law,  such  a  partition  can  rarely  be  conveniently  made, 
because  the  court  cannot  decree  compensation,  so  as  to  make  up  for 
any  inequality,  which  must  ordinarily  occur  in  the  allotment  of 
different  estates  to  each  party.  In  equity  it  is  in  the  ordinary 
course  (s). 

§  658.  It  is  upon  some  or  all  of  these  grounds,  the  necessity  of  a 
discovery  of  titles,  the  inadequacy  of  the  remedy  at  law,  the  difficulty 
of  making  the  appropriate  and  indispensable  compensatory  adjust- 
ments, the  peculiar  remedial  processes  of  courts  of  equity,  and  their 
ability  to  clear  away  all  immediate  obstructions  against  complete 
justice,   that  these  courts  have  assumed  a  general  concurrent  juris- 

(i)  Ante,  §  653. 

(it)   Warner  v.  Baynes,  Ambler  589. 

(l)   Wills  V.  Slade,  6  Ves.  498;  Baring  v.  Nash,  1  Ves.  &  B.  555;    Gaskell   v 
Gaskell,  6  Sim.  643;  Heaton  v.  Dearden,  16  Beav.  147. 
(m)  Evans  v.  Bagshaw,  L.  E.  5  Ch.  840. 

(n)  Story  on  Bq.  PI.  §  144  to  148;  Gaskell  v.  Gasskell,  6  Sim.  643. 
(o)  Agar  v.  Fairfax,  17  Ves.  544;  Watkins  v.  Williams,  3  Mao.  &  G.  622. 
(p)  Anon.,  3  Swanst.  139,  note  (b). 
iq)  Partition  Act,  1868  (31  &  32  Vict.  c.  40),  s.  9. 

(r)  Earl  of  Clarendon  v.  Hornby,  1  P.  Will.  446;  Peers  v.  Needham,  19  Beav.  316. 
(s)  Ante,  §  664. 


280  EQUITY    JURISPRUDENCE.  [CH.    XIV. 

diction  with  courts  of  law  in  all  cases  of  partition.  So  that,  it  is  not 
now  deemed  necessary  to  state,  in  the  bill,  any  peculiar  ground  of 
equitable  interference  (t).  And,  unless  I  am  greatly  misled  in  my 
judgment,  this  review  of  the  true  sources  and  objects  of  this  concurrent 
jurisdiction  demonstrates,  in  the  most  satisfactory  manner,  how  ill- 
founded  the  animadversions  of  Mr.  Hargrave  (already  cited)  are,  upon 
the  exercise  of  this  jurisdiction  (u).  But  the  most  conclusive  proof  in 
its  favour  is,  that,  wherever  it  exists,  it  has  almost  entirely  superseded 
any  resort  to  courts  of  law  to  obtain  a  partition.  In  making  partition, 
however,  courts  of  equity  generally  follow  the  analogies  of  the  law; 
and  will  decree  in  such  cases,  as  the  courts  of  law  recognize  as  fit  for 
their  interference  (x).  But  courts  of  equity  are  not  therefore  to  be 
understood  as  limiting  their  jurisdiction  in  partition  to  cases  cognizable 
or  relievable  at  law;  for  there  is  no  doubt,  that  they  may  interfere  in 
cases  where  a  partition  would  not  lie  at  law  (y) ;  as,  for  instance,  in 
the  case  where  an  equitable  title  is  set  up  (a)  or  where  the  estate  to  be 
divided  is  incorporeal.  With  regard  to  equitable  estates  a  distinction 
must  be  drawn  between  those  cases  in  which  trustees  hold  property 
upon  trust  for  sale,  and  those  in  which  they  merely  have  a  power  of 
sale.  In  the  former  case  there  could  be  no  partition,  for  in  the  eyes  of 
a  court  of  equity  the  parties  would  only  be  entitled  to  the  j)roperty  in 
its  converted  state,  unless  all  the  parties  being  sui  juris  elected  to  take 
the  property  in  its  unconverted  "state  (a). 

§  658a.  Many  improvements  in  procedure  in  partition  actions  have 
been  introduced  by  the  Partition  Act,  1868  (31  &  32  Vict.  c.  40),  and 
the  Partition  Act,  1876  (39  &  40  Vict.  c.  17),  the  most  material  being 
the  power  to  order  a  sale  and  division  of  the  proceeds,  against  the  will 
of  one  or  more  of  the  parties  interested.  Prior  to  this  statute  if  the 
only  outstanding  interest  was  vested  in  an  infant  the  court  could  by 
a  side  wind,  if  a  sale  were  in  fact  beneficial  to  the  infant,  make  an 
order  to  that  effect  (6) ;  but  against  the  wish  of  an  adult  part  owner 
there  could  be  no  sale  (c).  Under  sect.  3  of  the  Act  of  1868,  the  court 
.is  invested  with  a  discretion  to  order  a  sale  upon  the  application,  of 
any  of  the  parties  interested,  and  notwithstanding  the  dissent  or  dis- 
ability of  any  others  of  them  "  if  it  appears  to  the  court  that  by  reason 
of  the  nature  of  the  property  to  which  the  suit  relates,  or  of  the  number 
of  the  parties  interested  or  presumptively  interested  therein,  or  of  the 
absence  or  disability  of  some  of  those  parties,  or  of  any  other  circum- 

(t)  Mitford,  Eq.  PI.  by  Jeremy,  120. 

(a)  Ante,  §  646. 

(x)  Ante,  §  646;  Wills  v.  Slade,  6  Vea.  498;  Baring  v,  Nash,  1  Ves.  &  B.  55S. 
(y)  Swan  v.  Swan,  8  Price  519. 

(z)  Cartwright  v.  Pultney,  2  Atk.  380;    Com.  Dig.  Chancery,  4   E.,  Partition; 
ante,  §  653. 

(o)  Biggs  v.  Peacock,  22  Ch.  D.  284;  Boyd  v.  Allen,  24  Ch.  D.  622. 

(b)  Davis  v.  Turvey,  32  Beav.  554 ;  Huhbard  v.  Hubbard,  2  H.  &  M.  88. 

(c)  Griffies  v.  Griffies,  8  L.  T.  758. 


§  658a..]  PARTITION.  281 

stance,"  a  sale  and  distribution  of  the  proceeds  would  be  more  bene- 
ficial to  the  parties  (i).  By  sect.  4  of  the  same  statute,  "  the  party 
or  parties  interested,  individually  or  collectively,  to  the  extent  of  one 
moiety  or  upwards  in  the  property  ' '  may  force  a  sale  unless  the  court 
"  sees  good  reason  to  the  contrary  "  (e).  The  only  instance  in  which 
opposition  has  been  successfully  made  to  an  application  for  a  sale 
under  sect.  4,  was  where  it  appeared  that  the  party  asking  for  a  sale 
was  actuated  by  spite  or  ill-will  (/).  There  is  also  a  power  to  order  a 
sale  on  the  application  of  any  party  "unless  the  other  parties  interested 
in  the  property,  or  some  of  them,  undertake  to  purchase  the  share  of 
the  party  requesting  a  sale  "  (g). 

(d)  Pitt  V.  Jones,  5  App.  Cas.  659. 

(e)  Pemberton  v.  Barnes,  L.  E.  6  Ch.  685;  Porter  v.  Lopes,  7  Ch.  D.  358. 
(/)  Saxton  V.  BaHley,  48  L.  J.  Ch.  S19. 

Ig)  WiUiams  v.  Games,  L.  E.  10  Ch.  204;  Richardson  v.  Feary,  39  Ch.  D.  45. 


282  EQUITY     JURISPRUDENCE.  [OH.    XV. 


CHAPTER   XV. 


PARTNERSHIP. 


§  659.  Another  head  of  concurrent  jurisdiction  arising  from  similar 
causes  is  in  relation  to  Partnership  (a).  In  cases  of  this  nature, 
where  a  remedy  at  law  actually  exists,  it  is  often  found  to  be  very 
imperfect,  inconvenient,  and  circuitous.  But  in  a  very  great  variety 
of  cases,  there  is,  in  fact,  no  remedy  at  all  at  law  to  meet  the  exigency 
of  the  case.  We  shall,  in  the  first  instance,  take  notice  of  such 
remedies  as  exist  at  law;  and  then  proceed  to  the  consideration  of 
others,  which  are  peculiar  to  courts  of  equity. 

§  660.  And  here  it  may  be  pi'oper  to  begin  by  a  reference  to  that, 
which  is,  in  its  own  nature,  preliminary  to  all  other  inquiries,  to 
wit,  the  actual  existence  of  the  partnership  itself.  Although,  in 
many  cases,  written  articles  or  instruments  of  partnership  exist,  as 
the  foundation  of  the  joint  concerns ;  yet,  in  many  other  cases,  the 
partnership  itself  exists  merely  in  parol;  and  even  in  cases  of 
written  articles,  there  are  many  defects  and  omissions,  which  the 
parties  have  left  unprovided  for.  Now  a  controversy  may  arise  in 
regard  to  the  existence  of  the  partnership  between  the  partners 
themselves,  or  between  them  and  third  persons.  In  each  case  its 
existence  may  ^mainly  depend  upon  the  discovery  which  formerly 
could  only  be  obtained  through  the  instrumentality  of  a  court  of  equity. 
If  written  articles  exist,  they  may  be  suppressed  or  concealed;  if 
none  exist  it  may  be  impracticable  to  obtain  due  knowledge  of  the 
partnership  by  any  competent  witnesses  in  the  ordinary  course  of  law. 
But,  in  by  far  the  most  numerous  and  important  class  of  cases,  that 
of  secret  and  dormant  partners,  ther«  ordinarily  was  not  any  adequate 
means  at  law  to  get  at  the  names  or  numbers  of  the  partners.  In 
all  such  cases,  the  powers  of  a  court  of  equity  were  most  effective 
by  means  of  a  bill  of  discovery,  in  bringing  out  all  the  facts,  as  well 

(o)  See  Com.  Dig.  Chancery,  3  V.  6.  By  the  Judicature  Act,  1873,  s.  3i,  sub-s.  3. 
the  dissolution  of  partnerships,  or  the  taking  of  partnership  or  other  accounts,  is 
assigned  to  the  Chancery  Division  of  tlifi  High  Court  of  Justice.  The  law  of  partner- 
ship has  been  codified  by  the  Act  to  Declare  and  Amend  the  Law  of  Partnership  (53 
&  54  Vict.  c.  39).  This  Act  defines  "  Partnership  "  as  follows  :  "  Partnership  is  the 
relation  which  subsists  between  persons  carrying  on  a  business  in  common  with  a  view 
to  profit." 


§  659—663.]  PARTNERSHIP.  283 

in  controversies  between  the  partners  themselves,   as  between  them 
and  third  persons. 

§  661.  But  admitting  a  partnership  to  exist,  let  us  now  proceed  to 
consider  what  were  formerly  the  remedies  at  law  which  exist  between 
the  partners  themselves.  These,  of  course,  were  formerly  dependent 
upon  the  nature  of  the  partnership,  and  the  grievance  for  which  a 
remedy  is  sought.  If  the  articles  of  partnership  were  under  seal,  and 
any  violation  of  any  of  the  stipulations  therein  contained  existed,  it 
might  be,  and  was,  properly,  remediable  by  an  action  of  covenant  (b). 
If  there  were  written  articles  not  under  seal,  or  the  partnership  was  by 
a  parol  agreement,  the  proper  remedy  for  any  breach  of  the  stipula- 
tions was  by  an  action  of  assumpsit.  But,  as  we  shall  presently  see, 
both  these  remedies  were  utterly  inadequate  to  provide  for  many 
exigencies  and  injuries,  which  might  arise  out  of  the  violation  of 
partnership  rights  and  duties. 

§  662.  The  most  extensive,  and  generally  the  most  operative, 
remedy  at  law,  between  partners,  was  an  action  of  account.  This  was 
the  appropriate,  and,  except  under  very  peculiar  circumstances,  was 
the  only,  remedy,  at  the  common  law,  for  the  final  adjustment  and 
settlement  of  partnership  transactions.  It  is  a  very  ancient  remedy 
between  partners,  in  which  one,  naming  himself  a  merchant,  may 
sue  his  partner  for  a  reasonable  account,  naming  him  a  merchant, 
and  charging  him  as  the  receiver  of  the  moneys  of  himself,  arising 
from  whatever  cause  or  contract,  for  the  common  profit  of  both, 
according  to  the  law-merchant  (c). 

§  663.  But  it  is  wholly  unnecessary  to  dwell  upon  the  inadequacy 
of  this  remedy  in  cases  of  partnership,  as  all  the  remarks  already 
made  in  respect  to  the  dilatory,  cumbrous,  and  inconvenient  pro- 
ceedings in  actions  of  account  (d),  apply,  with  augmented  force,  to 
cases  of  partnership  where  it  is  absolutely  impossible,  in  many 
cases,  to  settle  the  concerns  of  the  partnership,  without  the  production 
of  books,  vouchers,  and  other  documents  belonging  to  the  partner- 
ship, and  the  personal  examination  of  the  partners  themselves. 
So  intimate  is  the  confidence  and  so  universal  the  community  of 
interest  and  operations  between  partners,  that  no  proceedings,  not 
including  a  thorough  and  minute  discovery,  can  enable  any  court  to 
arrive  at  the  meaaas  of  doing  even  reasonable  justice  between  them. 
And,  in  addition  to  the  common  difficulties  in  ordinary  cases,  the 
death  of  either  partner  puts  an  end,  at  the  common  law,  to  any 
means  of  enforcing  this  remedy  by  account;  for  it  being  founded 
in  privity  between  the  parties,  no  suit  lay  by  or  against  the  personal 
representative  of  the  deceased  partner  to  compel  an  account  (e). 

(b)  Schlencker  v.  Moxsy,  3  B.  &  C.  789. 

(c)  Co.  Litt.  172  a;  Pitz.  P.  B.  117,  D. 

<d)  Ante,  §§  442  to  449.  (e)  Ante,   §  446. 


284  EQUITY     JUEISPRUDENCB.  [CH.    XV. 

§  664.  In  a  few  cases,  indeed,  where  there  has  been  a  covenant  or 
promise  to  account,  courts  of  law  have  attempted  to  approximate 
towards  an  efiectual  remedy  in  the  shape  of  damages  for  a  breach  of 
the  obligation.  But  it  is  manifest,  that,  even  in  these  cases,  the 
damages  must  be  wholly  uncertain,  unless  an  account  can  be  fully 
and  fairly  taken  between  the  parties;  for,  otherwise,  there  wiU  be  no 
rule  by  which  to  ascertain  the  damages.  There  has,  too,  been  a 
struggle,  in  cases  where  one  partner  has  been  compelled  to  advance 
or  pay  money  on  the  partnership  account  out  of  his  own  private 
funds,  to  give  him  a  remedy  at  law  for  a  contribution  from  the  other 
partners.  But  it  is  difficult  to  perceive,  how,  except  under  very 
peculiar  circumstances,  such  a  remedy  will  lie.  For  it  is  impossible, 
during  the  continuance  of  the  partnership,  without  taking  a  general 
account,. to  say,  that  any  one  partner,  so  called  upon  to  advance  or 
to  pay  money,  is,  on  the  whole,  a  creditor  of  the  firm  to  such  an 
amount.  And  if  he  is,  how,  in  point  of  technical  propriety,  can  he 
institute  a  remedy  against  his  other  partners  alone,  as  contradis- 
tinguished from  the  partnership  ?  It  is  very  certain,  that,  if  he 
should  lend  the  partnership  a  sum  of  money,  he*  could  not  sue  for  it 
at  law,  for  he  could  not  sue  himself;  and  it  is  not  very  easy  to 
perceive  a  clear  distinction  between  this  and  the  former  case.  And 
if  it  should  turn  out,  upon  taking  a  general  account,  that  such  partner 
was  a  debtor  to  the  partnership,  it  would  be  unreasonable  and  useless 
to  allow  him  to  recover  the  very  money  which  he  must  refund  to  the 
partnership ;  for  the  maxim  of  common  sense,  as  well  as  of  common 
justice  is  Frustra  petis,  quod  statim  alteri  reddere  cogeris  (/). 

§  665.  Cases  have  also  occurred  in  which  suits  at  law  have  been 
maintained  for  the  breach  of  an  agreement  to  furnish  a  certain 
sum  or  stock  for  the  partnership  purposes.  In  such  a  case  the  trans- 
action is  not  so  much  a  partnership  transaction  as  an  agreement  to 
launch  the  partnership ;  and  an  agreement  to  pay  money  or  furnish 
stock  for  such  a  purpose,  is  an  individual  engagement  of  each  partner 
to  the  other  (g).  For  the  breach  of  such  an  agreement,  there  seems  no 
reasonable  objection  to  the  maintenance  of  a  suit  at  law.  But,  what 
should  be  the  measure  of  the  damages  must  depend  upon  the  cir- 
cumstances of  each  particular  case.  No  general  rule  can  be  laid 
down  to  govern  all  cases.  If  the  partnership  has  no  specific  term 
fixed  for  its  continuance,  in  many  cases  the  damages  would  be  merely 
nominal.  If  it  has  such  a  specific  fixed  term,  the  damages  must 
necessarily  be  of  a  very  uncertain  nature  and  extent.  The  whole 
sum  agreed  for  the  partnership  stock  could  not  be  the  true  rule;  for 
that  would  be  in  effect  to  give  one  partner  the  whole  capital  stock. 
And,   on  the   other  hand,   the  possible  profits   of  the  partnership,   if 

(/)  Branch's  Maxims,  p.  03;  Sprange  v.  Lee,  [1908]  1  Ch.  424. 

ig)  Sue  Venning  v.  Leckie,  13  Bast,  7;  Gale  v.  Leckie,  2  Stark.  107. 


§    664       667.]  PAUTNERSHIP. 


285 


earned  on,  would  not  furnish  a  rule  because  of  the  uncertainty  of 
such  profits,  and  possibly  to  arise  in  future,  and  the  injury  not 
being  certain  at  the  time  of  the  breach. 

§  666.  The  remedial  justice  administered  by  courts  of  equity  is  far 
more  complete,  extensive,  and  various,  adapting  itself  to  the  particular 
nature  of  the  grievance,  and  granting  relief  in  the  most  beneficial 
and  effectual  manner,  vi'here  no  redress  whatsoever,  or  very  imperfect 
redress,  could  be  obtained  at  law.  In  the  first  place,  they  may  decree- 
a  specific  performance  of  a  contract  to  enter  into  a  partnership  for  a 
specific  term  of  time  (for  it  would,  ordinarily  (h),  be  useless  to  enforce- 
one,  which  might  be  dissolved  instantly  at  the  will  of  either  party), 
and  to  furnish  a  share  of  the  capital  stock,  which  a  court  of  law  is 
incapable  of  doing.    This  remedy,  however,  if  ever,  is  rarely  granted  ((). 

§  667.  In  like  manner,  after  the  commencement  and  during  the- 
continuance  of  the  partnership,  courts  of  equity  will,  in  many  cases, 
interpose  to  decree  a  specific  performance  of  agreements  in  the  articles 
of  partnership  (k).  If,  for  instance,  there  be  an  agreement  to  insert 
the  name  of  a  partner  in  the  firm  name,  so  as  to  clothe  him 
publicly  with  all  the  rights  of  acting  for  the  partnership,  and  there- 
be  a  studied,  intentional,  prolonged,  and  continued  inattention  to  the- 
application  of  the  partner  to  have  his  name  so  used  and  inserted  in- 
the  firm  name,  courts  of  equity  will  grant  a  specific  relief  by  an 
injunction  against  the  use  of  any  other  firm  name,  not  including  his. 
But  the  remedy  in  such  cases  is  strictly  confined  to  cases  of  studied 
delay  and  omission,  and  relief  will  not  be  given  for  a  temporary, 
accidental,  or  trivial  omission  {I).  So,  where  a  partner  in  breach  of 
the  general  law  or  of  an  express  provision  in  the  articles  engages 
in  a  competing  business,  courts  of  equity  will  act  by  injunction  to- 
enforce  his  performance  of  his  obligation  to  restrict  his  industry 
to  the  partnership;  and,  if  profits  have  been  made  by  any  partner, 
in  violation  of  such  an  agreement,  in  any  other  business,  the  profits 
will  be  decreed  to  belong  to  the  partnership  (m).  So,  if  it  is  agreed 
that  upon  the  dissolution  of  a  partnership  a  certain  partnership  book 
shall  belong  to  one  of  the  partners  and  the  other  shall  have  a  copy 
of  it,  courts  of  equity  will  decree  a  specific  performance  (n).  Indeed,, 
a  partner  will  be  ordered  to  rest-ore  the  books  to  the  place  of  business 
of  a  partnership  (or  the  principal  place  if  more  than  one),  unless  the 

(h)  This  qualification  (ordinarily)  is  necessary ;  for  a  specific  performance  inay,  in 
some  cases,  be  important  to  establish  rights  under  a  partnership  which  has  no  fixed 
term  for  its  continuance.  Mr.  Swanston,  in  his  excellent  note  to  Crawshay  v.  Maule,. 
1  Swanst.  511,  512,  513,  has  clearly  shown  the  propriety  of  the  qualification. 

(i)  Sichel  v.  Mosenthal,  30  Beav.  371;  Scott  v.  Bayment,  L.  E.  7  Eq.  112. 

(k)  Const  V.  Harris,  T.  &  E.  496;  Watney  v.  Trist,  46  L.  J.  Ch.  412. 

(i)  Marshall  v.  Colman,  2  J.  &  W.  266;  Cheesman  v.  Price,  35  Beav.  142. 

(m)  Partnership  Act,  1890,  s.  30;  Aas  v.  Benham,  [1891]  2  Ch.  244. 

(n)  Lingen  v.  Simpson,  1  Sim.  &  Stu.  600. 


286  EQUITY    JURISPRUDENCE.  [CH.    XV. 

articles  make  some  other  provision  for  their  disposal  (o).  And 
numerous  other  examples,  illustrative  of  the  general  principle,  might 
be  given  (p). 

§  668.  The  Court  of  Chancery,  in  the  case  of  a  partnership 
existing  during  the  pleasure  of  the  parties,  with  no  time  fixed  for  its 
renunciation,  did  on  one  occasion  interfere  (as  it  should  seem)  to 
qualify  or  restrain  that  renunciation;  but  such  a  jurisdiction  would 
now  be  exercised  with  the  utmost  caution,  if  it  were  not  entirely 
disclaimed  (g). 

§  670.  These  are  instances  (and  others  might  be  mentioned)  of 
the  remedial  justice  of  courts  of  equity,  in  carrying  into  specific  effect 
the  articles  of  partnership  where  the  remedy  at  law  would  be  wholly 
illusory  or  inadequate.  But  it  is  not  hence  to  be  inferred  that  courts 
of  equity  would,  in  all  cases,  interfere  to  enforce  a  specific  per- 
formance of  such  articles.  Where  the  remedy  at  law  was  entirely 
adequate,  no  relief  will  be  granted  in  equity.  And  a  stipulation, 
purporting  to  divest  the  ordinary  jurisdiction  of  the  common  tribunals 
of  justice,  such  as  an  agreement,  in  case  of  any  disputes,  to  refer  the 
same  to  arbitrators,  was  regarded  both  by  courts  of  equity  and  of  the 
common  law  as  illegal  (?•) ;  but  it  has  since  been  enacted  that  persons 
may  make  agreements  to  submit  matters  in  dispute  between  them 
to  arbitration,  so  far  binding,  that  if  either  party  brings  an  action  in 
violation  of  such  an  agreement,  the  other  party  may  apply  for  a  stay 
of  proceedings  (s). 

§  671.  The  remedial  justice  of  courts  of  equity  is  not  confined  to 
cases  of  the  nature  above  stated.  They  may  not  only  provide  for  a 
more  effectual  settlement  of  all  the  accounts  of  the  partnership  after 
a  dissolution,  but  they  may  take  steps  for  this  purpose,  which  courts 
of  law  are  inadequate  to  afford.  After  some  difference  of  opinion  and 
conflicting  decisions  it  has  been  settled  that  they  may  interpose,  and 
decree  an  account,  where  a  dissolution  has  not  taken  place,  and  is 
not  asked  for,  although,  ordinarily,  they  are  not  inclined  to  decree  an 
account,  unless  under  special  circumstances,  if  there  is  not  an  actual 
or  contemplated  dissolution,  so  that  all  the  affairs  of  the  partnership 
may  be  wound  up  (t). 

§  672.  But  where  such  dissolution  has  taken  place,  an  account 
will  not  only  be  decreed,  but,  if  necessary,  a  manager  or  receiver  will 
be  appointed  to  close  the  partnership  business,  and  make  sale  of  the 
partnership  property;  so  that  a  final  distribution  may  be  made  of  the 

(o)  Partnership  Act,  1890,  6.  24,  sub-s.  9;  Greatrex  v.  Oreatrex,  6  De  G.  &  Sm. 
692. 

(p)  Hall  v.  Hall,  12  Beav.  414. 

(q)  See  Chavany  v.  Van  Sommer,  cited  1  Swanst.  611,  512,' in  a  note;  Burdon  v. 
Barkus,  i  De  G.  P.  &  J.  42;  Green  v.  Howell,  [1910]  1  Ch.  495. 

(r)  See  Scott  v.  Liverpool  Corp.,  3  De  G.  &  J.  334. 

(s)  Arbitration  Act,  1889  (52  &  53  Vict.  c.  49),  s.  4. 

(t)  Walworth  v.  Holt,  4  Myl.  &  Cr.  619;  cf.  Watney  v.  Trist,  45  L.  J.  Ch.  412. 


§  668— 673a.]  partnership.  287 

partnership  efiects  (u).  The  accounts  are  usually  directed  to  be  taken 
(as  has  been  already  suggested)  before  a  master,  who  examines  the 
parties,  if  necessary,  and  requires  the  production  of  all  the  books, 
papers,  and  vouchers  of  the  partnership,  and  he  is  armed  from  time 
to  time,  by  the  court,  with  all  the  powers  necessary  to  efiectuate 
the  objects  of  the  reference  to  him.  If  it  is  deemed  expedient  and 
proper,  the  court  will  restrain  the  partners  from  collecting  the  debts, 
or  disposing  of  the  property  of  the  concern,  and-  will  direct  the 
moneys  of  the  firm  received  by  any  of  them  to  be  paid  into  court. 
In  this  way  it  adapts  its  remedial  authority  to  the  exigencies  of  each 
particular  case  (x). 

§  673.  But,  perhaps,  one  of  the  strongest  cases  to  illustrate  the 
beneficial  operation  of  the  jurisdiction  of  courts  of  equity  in  regard  to 
partnership,  was  their  power  to  dissolve  the  partnership  during  the 
term  for  which  it  was  stipulated.  This  was  a  peculiar  remedy  which 
courts  of  common  law  were  incapable  of  administering,  by  the  nature 
of  their  organization,  and  has  since  been  confirmed  by  section  35 
of  the  Partnership  Act,  1890  (53  &  54  Vict.  c.  39).  Such  a  dissolution 
may  be  granted,  in  the  first  place,  on  account  of  the  insanity,  or 
permanent  mental  incapacity,  of  one  of  the  partners  (y).  In  the 
next  place  it  may  be  granted  if  the  defendant  partner  becomes  in 
any  other  way  permanently  incapable  of  performing  his  part  of  the 
partnership  contract  («).  In  the  next  place,  it  may  be  granted 
on  account  of  the  gross  misconduct  of  one  or  more  of  the  partners, 
if  the  party  applying  for  the  dissolution  is  not  the  defaulter  (a). 
But  trifling  faults  of  misbehaviour,  which  do  not  go  to  the  substance 
of  the  contract,  do  not  constitute  sufiicient  ground  to  justify  a  decree 
for  a  dissolution  (6).  Another  cause  for  a  dissolution  is  a  wilful  and 
persistent  breach  of  the  articles  by  the  defendant  partner  (c).  So,  if 
the  business  can  only  be  carried  on  at  a  loss  (d);  The  remaining 
ground  is  where  circumstances  have  arisen  which  "  render  it  just  and 
equitable"  that  the  partnership  should  be  dissolved  (e). 

§  673a.  By  the  Lunacy  Act,  1890  (53  &  54  Vict.  c.  5),  s.  119, 
"where  a  person,   being  a  member  of  a  partnership  firm,   becomes 

(u)  Featherstonehaugh  v.  Fenwick,  17  Ves.  298;  Cook  v.  Collingridge,  1  Jac.  607; 
Rigd'eti  v.  Pierce,  6  Mad.  353. 

(x)  Foster  v.  Donald,  1  Jac.  &  Walk.  252;  Richardson  v.  Bank  of  England, 
4  M.  &  Cr.  165. 

iy)  Partnership  Act,  1890,  s.  35  (o);  and  Anon.,  2  K.  &  J.  441. 

(«)  Partnership  Act,  1890,  s.  35  (b) ;  Whitwell  v.  Arthur,  35  Beav.  140. 

(a)  Partnership  Act,  1890  s.  35  (c) ;  Essell  v.  Hayward,  30  Beav.  222;  Price  v. 
Cheesman,  35  Beav.  142. 

(b)  Goodman  v.  Whitcomb,  1  J.  &  W.  589;  Anderson  v.  Anderson,  25  Beav.  190. 

(c)  Partnership  Act,  1890,  s.  35  (d). 

(d)  Partnership  Act,  1890,  s.  35  (e) ;  Bailey  v.  Ford,  13  Sim.  495. 

(e)  Partnership  Act,  1890,  s.  35  (/).  See  Baring  v.  Dix,  1  Cox  213;  Goodman  v. 
Whitcomb,  1  J.  &  W.  589;  Watney  v.  Wells,  30  Beav.  56;  Leary  v.  Shout,  33  Beav. 
582. 


288  EQUITY     JURISPRUDENCE.  [CH.    XV. 

lunatic, ' '  the  judge  exercising  jurisdiction  in  lunacy  ' '  may,  by  order, 
dissolve  the  partnership." 

§  674.  There  were  other  considerations  which  made  a  resort  to  a 
court  of  equity,  instead  of  a  court  of  law,  not  only  a  more  convenient, 
but  even  an  indispensable,  instrument  for  the  purposes  of  justice. 
Thus,  real  estate  may  be  bought  and  held  for  the  purposes  of  the 
partnership,  and  really  be  a  part  of  the  stock  in  trade.  The  convey- 
ance in  such  a  case  may  be  in  the  name  of  one,  for  the  benefit  of  all 
the  partners;  or  in  the  name  of  all,  as  tenants  in  common,  or  as 
joint-t-enants  (/).  In  case  of  the  death  of  a  partner,  by  which  a  dissolu- 
tion takes  place,  the  real  estate  might  become  severed  at  law  from 
the  partnership  funds,  and  vest  in  the  surviving  partner  exclusively, 
or  in  the  heirs  of  a  deceased  partner,  in  common  with  the  survivor, 
according  to  the  particular  circumstances  of  the  case.  In  taking  an 
account  of  the  partnership  effects  at  law,  it  was  impossible  for  the 
court,  for  the  benefit  of  creditors,  to  brin^  such  real  estate  into  the 
account ;  or  to  direct  a  sale  of  it ;  or  to  hold  it  a  part  of  the  partnership 
funds.  ■  It  was  perforce  treated  in  courts  of  law  just  as  its  character 
was  according  to  the  common  law.  But  in  a  court  of  equity,  in  such  a 
case,  the  real  estate  was  treated,  to  all  intents  and  purposes,  as  a 
part  of  the  partnership  funds,  whatever  might  be  the  form  of  the 
conveyance.  For  a  court  of  equity  considered  the  real  estate,  to  all 
intents  and  purposes,  as  personal  estate;  and  subjected  it  to  all  the 
equitable  rights  and  liens  of  the  partners,  which  would  apply  to  it 
if  it  were  personal  estate.  And  this  doctrine  not  only  prevailed,  as 
between  the  partners  themselves  and  their  creditors ;  but  as  between 
the  representatives  of  the  partners  also.  So  that  real  estate,  held  in 
fee  for  the  partnership,  and  as  a  part  of  its  funds,  upon  the  death  of 
the  partner  intestate  presumptively  devolved  upon  his  personal  and 
not  upon  his  real  representative  (g).  This  rule  has  now  been  confirmed 
by  section  22  of  the  Partnership  Act,  1890. 

§  675.  The  lien,  also,  of  partners  upon  the  whole  funds  of  the 
partnership,  for  the  balance  finally  due  to  them  respectively,  seems 
incapable  of  being  enforced  in  any  other  manner  than  by  a  court  of 
equity,  through  the  instrumentality  of  a  sale.  Besides,  the  creditors 
of  the  partnership  have  the  preference  to  have  their  debts  paid  out 
of  the  partnership  funds,  before  the  private  creditors  of  either  of  the 
partners.  On  the  other  hand,  the  separate  creditors  of  each  partner 
are  entitled  to  be  first  paid  out  of  the  separate  effects  of  their  debtor, 
before  the  partnership  creditors  can  claim  anything;  which  also  can 
be  accomplished  only  by  the  aid  of  a  court  of  equity ;  for  at  law  a 
joint  creditor  may  proceed  directly  against  the  separate  estate.  This 
is    another    illustration    of    the    doctrine    of    marshalling    assets,    and 

(f)  Lake  v.  Craddock,  3  P.  Will.  158;  Wray  v.  Wray,  [1905]  2  Ch.  349. 
(!7)  Att.-Gen.  v.  Hubbuck,  13  Q.  B.  D.  275. 


§  674—677.]  PARTNERSHIP.  289 

proceeds  upon  analogous  principles  being  worked  out  by  the  equity 
of  the  partners  to  be  recouped,  or  their  equitable  liability  to  refund; 
and  it  is  commonly  applied  in  cases  of  insolvency,  or  bankruptcy  (h). 
There  are  certain  exceptions  to  the  rule,  which  confirm,  rather  than 
abate,  its  force;  as  they  stand  upon  peculiar  reasons  (i). 

§  676.  In  like  manner,  in  cases  of  partnership  debts,  if  one  of  the 
partners  dies  and  the  survivor  becomes  insolvent  or  bankrupt,  the 
joint  creditors  have  a  right  to  be  paid  out  of  the  estate  of  the 
deceased  partner,  through  the  medium  of  the  equities  subsisting 
between  the  partners  (k).  Indeed,  a  broader  principle  is  now  estab- 
lished; and  it  is  held  that  bankruptcy  is  not  necessary,  in  order  to 
justify  the  creditors  of  the  partnership  in  resorting  to  the  assets  of 
the  deceased  partner ;  and  that  such  creditors  may,  in  the  first 
instance,  proceed  against  the  executor  or  administrator  of  the  deceased 
partner,  leaving  him  to  his  remedy  over  against  the  surviving  partners ; 
though,  certainly,  the  surviving  partners,  in  such  a  case,  would  be 
proper  parties,  if  not  necessary  parties,  to  the  suit  (I).  The  learned 
author  concluded  from  this  that  in  equity  all  partnership  debts  were 
to  be  treated  as  joint  and  several,  a  position  no  longer  maintain- 
able (m).  The  true  principle  is  thaf  the  Court  of  Chancery  did  not 
interfere  with  the  creditor's  right  to  levy  execution  on  one  of  several 
judgment  debtors,  but  gave  the  debtor  who  paid  more  than  his  fair 
share  a  remedy  over  against  other  judgment  debtors.  The  principle 
is  not  restricted  to  partnership  joint  debts  (n). 

§  677.  In  regard  to  partnership  property,  another  illustration,  of  a 
kindred  character,  involving  the  necessity  of  an  account,  may  be  put 
to  establish  the  utility  and  importance  of  equity  jurisdiction.  Until 
section  23  of  the  Partnership  Act,  1890,  restricted  the  right  of  a 
judgment  creditor  having  a  separate  demand  to  a  charging  order 
upon  his  debtor's  interest  in  the  partnership  assets,  and  a  right  to 
accounts  and  enquiries  to  ascertain  whati  that  interest  was,  a  sheriff 
might  levy  upon  the  joint  property  of  the  partnership.  In  such  a 
case,  however,  the  creditor  could  levy,  not  the  moiety  or  undivided 
share  of  his  debtor  in  the  property,  as  if  there  were  no  debts  of  the 
partnership,  or  lien  »on  the  same  for  the  balance  due  to  the  other 
partner;  but  he  could  levy  the  interest  only  of  his  debtor,  if  any, 
in  the  property,  after  the  payment  of  all  debts  and  other  charges 
thereon  (o).     In  short,  he  could  take  only  the  same  interest  in  the 

(h)  Twiss  v.  Massey,  1  Atk.  67;  Lodge  v.  Prichard,  1  De  G.  J.  &  S.  610;  In  re 
Head,  Ex  parte  Head's  Executors,  1894,  1  Q.  B.  638. 

(i)  Campbell  v.  Mullett,  2  Swanst.  551;  In  re  Bridgett,  Cooper  v.  Adams  [1895] 
•2  Ch.  557. 

(k)  Lodge  v.  Prichard,  1  De  G.  J.  &  S.  610.    See  Partnership  Act,  1890,  ».  42. 

(I)  Wilkinson  v.  Henderson,  1  Myl.  &  K.  582. 

(m)  Kendall  v.  Hamilton,  4  App.  Cas.  504.        (n)  Sleech's  Case,  1  Mer.  529,  539. 

fo)  West  V.  Skip,  1  Ves.  Sen.  239;  Button  v.  Morrison,  17  Ves.  193;  Helmore  v. 
Smith,  35  Ch.  D.  436! 

E.J.  19 


290  EQUITY  JURISPRUDENCE.  [CH.    XV. 

property  which  the  judgment  debtor  himself  would  have  upon  the 
final  settlement  of  aJl  the  accounts  of  the  partnership.  When,  there- 
fore, the  sheria  seized  such  property  upon  an  execution,  he  seized 
only  such  undivided  and  unascertained  interest;  and  if  he  sold  under 
the  execution,  the  sale  conveyed  nothing  more  to  the  vendee,  who 
thereby  became  a  tenant  in  common,  than  the  rights  and  interests 
of  the  judgment  debtor  in  the  property  seized  (p).  In  truth,  the  sale 
did  not  transfer  any  part  of  the  joint  property  to  the  vendee,  so  as  to 
entitle  him  to  take  it  from  the  other  partners;  for  that  would  be, 
to  place  him  in  a  better  situation  than  the  partner  himself.  But  it 
gave  him,  properly  speaking,  a  right  in  equity  to  call  for  an  account, 
and  thus  to  entitle  himself  to  the  interest  of  the  partner  in  the 
property  which  shall,  upon  the  settlement  of  the  account,  be 
ascertained  to  exist.  It  is  obvious,  from  what  has  been  already  stated, 
how  utterly  inadequate  the  means  of  a  court  of  law  were  to  take  such 
an  account.  And,  indeed,  under  a  levy  of  this  sort,  it  is  not  easy  to 
perceive  what  authority  a  court  of  law  had  to  interfere  at  all,  to  take 
an  acootmt  of  the  partnership  transactions;  or  by  what  process  it 
could  enforce  it.  In  such  a  case,  therefore,  the  proper  remedy  for 
the  other  partners,  if  nothing  was  due  to  the  judgment  debtor  out  of 
the  partnership  funds,  was  to  file  a  bill  in  equity  against  the  vendee 
of  the  sheriff,  to  have  the  proper  accounts  taken  (q). 

§  679.  Another  illustration  of  the  beneficial  result  of  equity  juris- 
diction, in  cases  of  partnership,  may  be  found  in  the  not  uncommon 
case  of  two  firms  dealing  with  each  other,  where  some  or  all  of  the 
partners  in  one  firm  are  partners  with  other  persons  in  the  other 
firm.  Upon  the  technical  principles  of  the  common  law,  in  such 
cases,  no  suit  could  be  maintained  at  law  in  regard  to  any  transactions 
or  debts  between  two  firms;  for,  in  such  suit,  all  the  partners  must 
haver  joined,  and  have  been  joined ;  and  no  person  could  maintain  a 
suit  against  himself,  or  against  himself  and  others.  The  objection 
was  at  law  a  complete  bar  to  the  action.  Nay,  even  after  the  death 
o£  the  partner  or  partners,  belonging  to  both  firms,  no  action,  upon 
any  simple  contract,  or  mutual  dealing,  ex  contractu,  was  maintain- 
able by  the  survivors  of  one  firm  against  those  of  the  other  firm ; 
for,  in  a  legal  view,  there  never  was  any  subsisting  contract  between 
the  firms;  as  a  pai-tner  cannot  contract  with  himself  (r).  If,  how- 
ever, the  contract  were  by  deed,  the  death  of  the  common  partner 
would  have  entitled  the  surviving  partners  of  one  firm  to  maintain 
an  action  of  covenant  against  the  surviving  partners  in  the  other  (s). 

(p)  West  V.  Skip,  1  Ves.  Sen.  239;  Skipp  v.  Harwood,  2  Swanst.  586;  Chapman 
V.  Koops,  3  Bos.  &  Pul.  289;  Holmes  v.  Mentze,  4  A.  &  E.  127 ;  Habershon  v.  Blurton, 
1  De  G.  and  Sm.  121. 

(q)  Chapman  v.  Koops,  3  Bos.  &  Pul.  289;  Waters  v.  Taylor,  2  Ves.  &  B.  300, 
301 ;  Habershon  v.  Blurton,  1  De  G.  &  Sm.  121. 

(r)  Bosanquet  v.  Wray,  6  Taunt.  597;  Sharman  v.  Brandt,  L.  B.  6  Q.  B.  720; 
Ellis  V.  Kerr  [1910]  1  Ch.  529.  (s)  Rose  v.  Poulton,  2  B.  «s  Ad.  822. 


§    679—682.]  PARTNERSHIP.  291 

§  680.  But  there  never  has  been  any  difficulty  in  proceeding  in 
courts  of  equity  to  a  final  adjustment  of  all  the  concerns  of  both  firms, 
in  regard  to  each  other;  for,  in  equity,  it  is  sufficient,  that  all  parties 
in  interest  are  before  the  court  as  plaintiffs  or  as  defendants;  and 
they  need  not,  as  at  law,  in  such  a  case,  be  on  the  opposite  sides  of 
the  record.  In  equity,  all  contracts  and  dealings  between  such  firms, 
of  a  moral  and  legal  nature,  are  deemed  obligatory,  though  void  at 
law.  Courts  of  equity,  in  all  such  cases,  look  behind  the  form  of  the 
transactions  to  their  substance ;  and  treat  the  different  forms,  for  the 
purposes  of  substantial  justice,  exactly  as  if  they  were  composed  of 
strangers,   or  were  in  fact  corporate  companies  (i). 

§  681.  Upon  similar  grounds,  one  partner  cannot,  at  law,  main- 
tain a  suit  against  his  copartners,  to  recover  tlhe  amount  of  money, 
which  he  has  paid  for  the  partnership ;  since  he  cannot  sue  them 
without  suing  himself,  also,  as  one  of  the  partnership.  And,  if  one 
partner,  in  fraud  of  the  partnership  rights  or  credits,  should  release 
an  action,  that  release  would,  at  law,  be  obligatory  upon  all  the 
partners.  But  a  court  of  equity  would  not,  under  such  circumstances, 
hesitate  to  relieve  the  partnership  (m). 

§  682.  Courts  of  equity,  in  this  respect,  act  upon  principles 
familiarly  recognized  in  the  civil  law,  and  in  the  jurisprudence  of 
those  nations  which  derive  their  law  from  that  most  extensive  source. 
This  wiU  abundantly  appear,  by  reference  to  the  known  jurisprudence 
of  Scotland,  and  that  of  the  continental  nations  of  Europe  (a;). 
Indeed,  it  would  be  a  matter,  not  merely  of  curiosity,  but  of  solid 
instruction  (if  this  were  the  proper  place  for  such  an  examination), 
to  trace  out  the  strong  lines  of  analogy  between  the  laws  of  partner- 
ship, as  understood  in  England,  and  especially  as  administered  in 
equity,  and  that  of  the  Eoman  jurisprudence.  Unexpected  coinci- 
dences are  everywhere  to  be  found ;  while  the  differences  are  com- 
paratively few;  and,  for  the  most  part,  these  arise,  rather  from  the 
different  processes  and  forms  of  administering  justice  in  different 
countries,  than  from  any  general  diversity  of  principles  (y).  Among 
other  illustrations,  we  may  cite  the  general  doctrine,  that  the  partner- 
ship property  is  first  liable  to  the  partnership  debts ;  that  the  right 
of  any  one  partner  is  only  to  his  share  of  the  surplus ;  that  joint 
creditors   have    a   priority    or   privilege    of   payment    before    separate 


(t)  Ex  parte  Sillitoe,  2  L.  J.  0.  S.  Ch.  137 ;  Ex  parte  Castell,  5  L.  J.  0.  S.  Ch.  71 ; 
Piercey  v.  Fynney,  L.  E.  12  Eq.  69. 

(u)  Jones  V.  Yates,  9  B.  &  C.  532;  Piercey  v.  Finney,  L.  E.  12  Eq.  69. 

(x)  See  2  Bell,  Com.  B.  7,  ch.  2,  §  2,  art.  1214. 

(y)  To  establish  this  statement,  the  learned  reader  may  be  referred  to  the  Digest, 
Lib.  17,  tit.  2,  Pro.  Socio;  and  Voet,  Com.  ad.  id. ;  Vinnius,  Com.  Inst.  Lib.  3,  tit.  26. 
1  Domat,  Civil  Law,  tit.  Partnership,  B.  1,  tit.  8,  per  tot. ;  2  Bell,  Com.  i,  ch.  2,  arts. 
1250  to  1263;  Code  Civil  of  France,  arts.  1832  to  1873;  Pothisr,  Traits  de  Soci^te, 
per  tot. 


292  EQUITY   JURISPRUDENCE.  [CH.    XV. 

creditors   (z);  and   that  the   estates   of   deceased   partners   are   liable 
to  contribute  towards  the  payment  of  the  joint  debts  (a). 

§  683.  This  review  of  some  of  the  more  important  eases  in  which 
courts  of  equity  interfere  in  regard'  to  partnerships,  does  (unless  my 
judgment  greatly  misleads  me)  establish,  in  the  most  conclusive 
manner,  the  utter  inadequacy  of  courts  of  law  to  administer  justice 
in  most  cases,  growing  out  of  partnerships,  and  the  indispensable 
necessity  of  resorting  to  courts  of  equity,  for  plain,  complete,  and 
adequate  redress.  Where  a  discovery,  on  account,  a  contribution,  an 
injunction,  or  a  dissolution  is  sought,  in  cases  of  partnership,  or  even 
where  a  due  enforcement  of  partnership  rights,  and  duties,  and 
credits,  is  required,  it  is  impossible  not  to  perceive,  that,  generally,  a 
resort  to  courts  of  law  would  be  little  more  than  a  solemn  mockery 
of  justice.  Hence,  it  can  excite  no  surprise,  that  courts  of  equity 
now  exercise  a  full  concurrent  jurisdiction  with  courts  of  law  in  all 
matters  of  partnership;  and,  indeed,  it  may  be  said,  that,  practically 
speaking,  they  exercise  an  exclusive  jurisdiction  over  the  subject  in 
all  eases  of  any  complexity  or  difficulty. 

(z)  1  Domat,  B.  1,  tit.  8,  §  3,  art.  10. 

(a)  Ibid.  §  6,  arts.  1,  2;  Pothier,  Traits  de  Societe,  nn.  96,  136,  161,  162. 


§  683 693.]  CANCELLATION  OF  DEEDS.  293 


CHAPTER    XVI. 

PECULIAR    REMEDIES    IN    EQUITY — CANCELLATION    AND    DELIVERY    OF 

INSTRUMENTS. 

§  688.  We  shall  now  proceed  to  the  consideration  of  the  other  branch 
of  concurrent  jurisdiction,  that  in  which  the  peculiar  remedies  afforded 
by  courts  of  equity  constitute  the  principal,  although  not  the  sole, 
ground  of  jurisdiction. 

§  692.  One  head  of  equity  jurisdiction  embraces  that  large  class 
of  cases,  where  the  Eescission,  Cancellation,  or  Delivery  up  of 
agreements,  securities,  or  deeds  is  sought,  or  a  Specific  Performance 
is  required  of  the  t-erms  of  such  agreements,  securities,  or  deeds, 
as  indispensable  to  reciprocal  justice.  It  is  obvious  that  courts  of  law 
are  utterly  incompetent  to  make  a  specific  decree  for  any  relief  of 
this  sort  (a) ;  and,  without  it,  the  most  serious  mischiefs  may  often 
arise  to  the  parties  interested.  The  subject  naturally  divides  itself 
into  two  great  branches.  In  the  first  place,  what  are  the  cases  in 
which  courts  of  equity  will  undertake  to  rescind,  cancel,  or  direct  a 
surrender  of  contracts,  securities,  and  deeds?  And,  in  the  second 
place,  what  are  the  cases  in  which  courts  of  equity  will  enforce  a 
specific  performance  of  them? 

§  698.  Before  proceeding  to  the  consideration  of  these  distinct  and 
important  subjects,  it  may  be  proper  to  suggest,  that  the  application 
to  a  court  of  equity  for  either  of  these  purposes  is  not,  strictly  speak- 
ing, a  matter  of  absolute  right,  upon  whiph  the  court  is  bound  to  pass 
a  final  judgment.  But  it  is  a  matter  of  sound  discretion,  to  be  exer- 
cised by  the  court,  either  in  granting  or  in  refusing  the  relief  prayed, 
according  to  its  own  notion  of  what  is  reasonable  and  proper  under 
all  the  circumstances  of  the  particular  case  (b).  Thus,  for  instance,  a 
court  of  equity  will  sometimes  refuse  to  order  a  specific  performance 
of  an  agreement,  which  it  will  yet  decline  to  order  to  be  delivered  up, 
cancelled,  or  rescinded  (c).  On  the  other  hand,  a  specific  performance 
will  be  ordered  upon  the  application  of  one  party  when  it  would  be 
denied  upon  the  application  of  the  other.  And  an  agreement  will  be 
rescinded  or  cancelled  upon  the  application  of  one  party,  when  the 
court  would  decline  any  interference  at  the  instance  of  the  other  (d). 

(o)  Bromley  v.  Holland,  7  Ves.  3;  Simpson  v.  Lord  Howden,  3  M.  &  Cr.  97. 

(b)  MoHlock  v.  Buller,  10  Ves.  292. 

(c)  Mortlock  V.  Buller,  10  Ves.  292 ;  Turner  v.  Harvey,  Jac.  178. 

(d)  Cooke  V.  Clayioorth,  18  Ves.  12.    See  §  206. 


294  EQUITY   JUEISPRUDENCE.  [CH.    XVI. 

So  that  we  are  here  to  understand,  that  the  interference  of  a  court  of 
equity  is  a  naatter  of  mere  discretion;  not,  indeed,  of  arbitrary  and 
capricious  discretion,  but  of  sound  and  reasonable  discretion,  secun- 
dum arbitrium  boni  judicis  (e).  And  in  all  cases  of  this  sort,  where 
the  interposition  of  a  court  of  equity  is  sought,  the  court  will,  in 
granting  relief,  impose  such  terms  upon  the  party  as  it  deems  the 
real  justice  of  the  case  to  require;  and,  if  the  plaintiff  refuses  to 
comply  with  such  terms,  his  bill  will  be  dismissed  (/).  The  maxim 
here  is  emphatically  applied — He  who  seeks  equity  must  do  equity. 

§  693a.  By  the  34th  section  of  the  Judicature  Act,  1873,  it  is 
provided  that  the  jurisdiction  as  to  the  rectification,  the  setting  aside, 
and  the  cancellation  of  deeds  and  other  written  instruments,  shall  be 
assigned  to  the  Chancery  Division  of  the  High  Court. 

§  694.  In  the  first  place,  then,  let  us  consider  in  what  cases  the 
coiu-t  will  direct  the  Delivery  up,  Cancellation,  or  Eescission  of 
agreements,  securities,  deeds,  or  other  instruments.  It  is  obvious 
that  the  jurisdiction,  exercised  in  cases  of  this  sort,  is  founded  upon 
the  administration  of  a  protective  or  preventive  justice.  If,  therefore, 
the  instrument  was  void  for  matter  apparent  upon  the  face  of  it, 
there  was  no  call  to  exercise  the  jurisdiction,  with  the  possible  ex- 
ception of  instruments  forming  a  clause  upon  the  title  to  land  (g). 
The  party  is  relieved  upon  the  principle,  as  it  is  technically  called 
quia  timet;  that  is,  for  fear  that  such  agreements,  securities,  deeds, 
or  other  instruments  may  be  vexatiously  or  injuriously  used  against 
him,  when  the  evidence  to  impeach  them  may  be  lost;  or  that  they 
may  now  throw  a  cloud  or  suspicion  over  his  title  or  interest.  We 
have  already  had  occasion  to  take  notice  of  a  great  variety  of  cases, 
in  which  agreements,  securities,  deeds,  and  other  instruments  have 
been  set  aside,  and  decreed  to  be  delivered  up,  on  the  ground  of 
accident,  mistake,  and  fraud  (h).  Under  the  two  former  heads,  it  will 
readily  be  perceived,  upon  th^  slightest  examination,  that  a  rescission, 
or  cancellation  of  the  agreements,  securities,  deeds,  or  other  instru- 
ments, would  not,  in  a  great  many  cases,  be  an  appropriate,  adequate, 
or  equitable  relief.  The  accident  or  mistake  may  be  of  a  nature  which 
does  not  go  t-o  the  very  foundation  and  merits  of  the  agreement; 
but  may  only  require  that  some  amendment,  addition,  qualification,  or 
variation  should  take  place,  to  make  it  at  once  just  and  reasonable 
and  fit  to  be  enforced.  But  it  can  rarely  be  said  that,  in  cases  of 
fraud,  actual  or  constructive,   the  same  observations  properly  apply. 

(e)  Buckle  v.  Mitchell,  18  Ves.  Ill;  Revell  v.  Hussey,  2  Ball  &  B.  288;  Eastern 
Counties  Ry.  v.  Hawkes,  5  H.  L.  C.  331;  Haywood  v.  Cope,  25  Beav.  140. 

(/)  Earl  of  Aldborough  v.  Tyre,  7  CI.  &  F..  436 ;  Oakes  v.  Turquand,  L.  E.  2  H.  L. 
325;  Bank  of  Montreal  v.  Stuart,  [1911]  A.  C.  120. 

(g)  Bromley  v.  Holland,  7  Ves.  8;  Simpson  v.  Lord  Howden,  3  M.  &  Cr.  97. 

{h)  Willan  v.  Willan,  16  Ves.  72;  Ball  v.  Storie,  1  Sim.  &  St.  210;  Metropolitan, 
dc,  Soc.  V.  Brown,  26  Beav.  454. 


§  693a — 696.]  cancellation  of  deeds.  295 

If  there  is  actual  fraud,  there  seems  the  strongest  ground  for  the 
interference  of  a  court  of  equity  to  rescind  a  contract,  security,  or 
other  instrument.  And  if  the  fraud  be  constructive,  still,  for  the  most 
part,  it  ought  to  draw  after  it  the  same  consequences,  either  as  a 
breach  of  trust,  or  an  abandonment  of  duty  or  a  violation  of  public 
policy.  But  although  fraud  may,  in  all  these  cases,  furnish  a  sufficient 
ground  to  rescind  a  contract  in  jure  strictissimo ;  yet  there  may  be 
circumstances  which  may  justly  mitigate  the  rigid  severity  of  the 
law ;  or  may  place  the  parties  in  pari  delicto ;  or  may  require  a  court 
of  equity,  from  the  demerit  of  the  plaintiff  in  the  particular  trans- 
action, to  abstain  from  the  slightest  interference;  or  may  even  induce 
it,  if  it  should  rescind  the  contract,  to  do  so  only  upon  the  terms 
of  due  compensation,  and  the  allowance  of  the  countervailing  equities 
of  the  plaintiff  (i). 

§  695.  Without  attempting  to  go  over  the  different  classes  of  cases 
of  fraud  (which  have  been  already  enumerated),  it  may  be  stated, 
that  courts  of  equity  will  generally  set  aside,  cancel,  and  direct  to  be 
delivered  up,  agreements  and  other  instruments,  however  solemn  in 
their  form  of  operation,  where  they  are  voidable,  and  not  merely 
void,  under  the  following  circumstances :  First,  where  there  is  actual 
fraud  in  the  party  defendant,  in  which  the  party  plaintiff  has  not 
participated  (k).  Secondly,  where  there  is  a  constructive  fraud 
against  public  policy,  and  the  party  plaintiff  has  not  participated 
therein  (?).  Thirdly,  where  there  is  a  fraud  against  public  policy, 
and  the  party  plaintiff  has  participated  therein,  but  public  policy 
would  be  defeated  by  allowing  it  to  stand  (w).  Fourthly,  where  there 
is  a  constructive  fraud  by  both  parties,  but  they  are  not  in  pari 
delicto  (n).  And  lastly,  where  since  the  execution  of  the  instrument 
a  state  of  things  has  arisen  quite  different  from  that  contemplated 
by   the   instrument,    and   rendering   it  inoperative   in   the   future    (o). 

§  696.  But  in  many  cases,  where  the  instrument  is  declared  void 
by  positive  law,  and  also,  where  it  is  held  void  or  voidable  upon  other 
principles,  courts  of  equity  will  impose  terms  upon  the  party,  if  the 
circumstances  of  the  case  require  it.  Thus,  before  the  repeal  of  the 
usury  laws,  courts  of  equity  would  not  interpose  in  favour  of  the 
borrower,  except  upon  the  payment  or  allowance  of  the  debt  fairly 
due  and  interest  at  the  legal  rate  (p) ;  and  a  similar  principle  is  applied 

(i)  Ante,  §  50;  Holbrook  v.  Sharpey,  19  Ves.  131. 

(k)  Reese  River  Silver  Mining  Co.  v.  Smith,  L.  R.  4  H.  L.  64;  Adam  v.  New- 
bigging,  13  App.  Cas.  308. 

(l)  Hugerenin  v.  Baseley,  7  Ves.  273. 

(m)  Williams  v.  Bayley,  L.  E.  1  H.  L.  200. 

(n)  Bromley  v.  Holland,  7  Ves.  3;  Saunders  v.  Newbold  [1905],  1  Ch.  260;  affd. 
nom  Samuel  v.  Newbold  [1906],  A.  C.  461. 

(o)  McDonnell  v.  Hesilrige,  16  Beav.  346;  Bond  v.  Walford,  82  Ch.  D.  288. 

(p)  Scott  V.  Nesbit,  4  Bro.  C.  C.  641. 


296  EQUITY   JURISPRUDENCE.  [CH.    XVI. 

where  a  catching  bargain  with  an  heir  or  expectant  is  challenged  (g). 
So,  in  cases  of  the  setting  aside  and  cancellation,  and  delivery  up  of 
annuity  securities  because  they  were  not  duly  registered,  courts  of 
equity  would  direct  an  account  of  all  receipts  and  payments  on  each 
side,  and  require  the  just  balance  to  be  paid  by  the  proper  party  (r). 
And  similar  principles  are  applied  to  other  cases,  where  the  trans- 
action is  deemed  indefensible,  and  yet  there  is  an  equitable  right  to 
compensation. 

§  697.  On  the  other  hand,  where  the  party  seeking  relief  is  the 
sole  guilty  party,  or  where  he  has  participated  equally  and  deliberately 
in  the  fraud;  or  where  the  agreement,  which  he  seeks  to  set  aside, 
is  founded  in  illegality,  immorality,  or  base  and  unconscionable 
conduct  on  his  own  part;  in  such  cases  courts  of  equity  will  leave 
him  to  the  consequences  of  his  own  iniquity ;  and  will  decline  to 
assist  him  to  escape  from  the  toils  which  he  has  studiously  prepared 
to  entangle  otliers,  or  whereby  he  has  sought  to  violate  with  impunity 
the  best  interests  and  morals  of  social  life  (s).  And  if  acts  of  this  sort 
have  been  deliberately  done  under  circumstances  in  which  innocence 
has  been  betrayed,  or  confidence  seduced,  or  falsehood  or  concealment 
systematically  practised,  a  fortiori,  courts  of  equity  could  not,  without 
straining  the  administration  of  justice,  interfere  to  save  the  party 
from  the  just  results  of  his  own  gross  misconduct,  when  the  failure  of 
success  in  the  scheme  would  manifestly  be  the  sole  cause  of  his 
praying  relief. 

§  698.  A  question  has  oft-en  occurred  how  far  courts  of  equity 
would  or  ought  to  interfere  to  direct  deeds  and  other  solemn  instru- 
ments to  be  delivered  up  and  cancelled,  which  are  utterly  void,  and 
not  merely  voidable.  The  doubt  has  been,  in  the  first  place,  whether, 
as  an  instrument  utterly  void  is  incapable  of  being  enforced  at  law, 
it  is  not  a  case  where  the  remedial  justice  to  protect  the  party  may 
not  be  deemed  adequate  and  complete  at  law,  and  therefore  where 
the  necessity  for  the  interposition  of  courts  of  equity  is  obviated. 
And,  in  the  next  place,  whether,  if  the  instrument  be  void,  and  ought 
not  to  be  enforced,  the  more  appropriate  remedy  in  a  court  of  equity 
would  not  be,  to  order  a  perpetual  injunction  to  restrain  the  use  of 
the  instrument,  rather  than  to  compel  a  delivery  up  and  cancellation 
of  the  instrument. 

§  700.  But  whatever  may  have  been  the  doubts  or  difficulties 
formerly  entertained  upon  this  subject,  they  seem  by  the  more  modem 
decisions  to  be  fairly  put  at  rest.  If  the  instrument  is  void  for  matter 
apparent  upon  the  face  of  the  instrument,  the  intervention  of  a  court 

(q)  Earl  of  Aylesford  v.  Morris,  L.  E.  8  Ch.  484. 
(r)  Bromley  v.  Holland,  7  Ves.  3. 

(s)  Brackenbury  v.  Brackenhury,  2  J.  &  W.  391;  Ayerst  v  Jenkins,  L.  E  16 
Eq.  275. 


§  697 — 703.]  CANCELLATION  OF  DEEDS.  297 

of  equity  is  unnecessary  and  now  no  longer  exercised  (t).  But  if  the 
illegality  be  not  so  apparent,  and  the  instrument  ought  not  to  be  used 
or  enforced,  it  is  against  conscience  for  the  party  holding  it  to  retain 
it;  since  he  can  only  retain  it  for  some  sinister  purpose.  If  it  is  a 
negotiable  instrument,  it  may  be  used  for  a  fraudulent  or  improper 
purpose,  to  the  injury  of  a  third  person  (m).  If  it  is  a  deed  purporting 
to  convey  lands  or  other  hereditaments,  its  existence  in  an  uncancelled 
state  necessarily  has  a  tendency  to  throw  a  cloud  over  the  title  (x). 
If  it  is  a  mere  writt-en  agreement,  solemn  or  otherwise,  still,  while  it 
exists,  it  is  always  liable  to  be  applied  to  improper  purposes;  and  it 
may  be  vexatiously  litigated  at  a  distance  of  time,  when  the  proper 
•evidence  to  repel  the  claim  may  have  been  lost  or  obscured,  or  when 
the  other  party  may  be  disabled  from  contesting  its  validity  with  as 
much  ability  and  force  as  he  can  contest  it  at  the  present  moment  (y). 
But  the  proper  course  in  such  a  case  is  to  resort  to  proceedings  to 
perpetuate  testimony  («). 

§  701.  The  whole  doctrine  of  courts  of  equity  on  the  subject 
hitherto  discussed  is  referable  to  the  general  jurisdiction  which  it 
exercises  in  favour  of  a  party  quia  timet.  It  is  confined  strictly  to 
cases  where  the  instrument,  having  been  executed,  is  inherently  void 
upon  grounds  of  law  or  equity;  and  not  where  the  objection  arises  by 
matter  subsequent  to  the  execution  of  the  instrument  (a). 

§  703.  But  the  jurisdiction  of  courts  of  equity  to  decree  a  delivery 
up  or  cancellation  of  deeds  or  other  instruments-,  is  not  limited  to  cases 
in  which  some  inherent  defect  in  their  original  character  renders  them 
either  voidable  or  void.  On  the  contrary,  its  remedial  justice  is  often 
and  most  beneficially  applied,  by  affording  specific  relief,  in  cases  of 
unexceptionable  deeds  and  other  instruments,  in  favour  of  persons 
who  are  legally  entitled  to  them  (6).  This,  indeed,  is  a  very  old  head 
of  equity  jurisdiction,  and  has  been  traced  back  to  so  early  a  period  as 
■the  reign  of  Edward  IV.  (c).  It  is  a  most  important  branch  of  equity 
jurisprudence ;  and  is  exerted,  in  all  suitable  cases  of  a  public  or 
private  nature,  in  favour  of  persons  entitled  to  the  custody  and  posses- 
sion of  deeds  and  other  writings.  Thus,  heirs-at-law,  devisees,  and 
other  persons,  entitled  to  the  custody  and  possession  of  the  title-deeds 
of  their  respective  estates,  may,  if  they  are  detained  or  withheld  from 
them,  obtain  a  judgment  for  a  specific  delivery  of  them  (rf).     The  same 

(t)  Simpson  v.  Lord  Howden,  3  M.  &  Cr.  97. 
(u)  Williams  v.  Bayley,  L.  B.  1  H.  L.  200. 

(x)  Pierce  v.  Webb,  3  Bro.  C.  C.  16  n. ;  Onions  v.  Cohen,  2  H.  &  M.  354. 
(y)  Bromley  v.   Holland,  7  Ves.  3,  20,  21;  Peake  v.   Highfield,  1  Euss.   559; 
Duncan  v.  Worrall,  10  Price  31. 

(z)  Brooking  v.  Maudsley,  38  Ch.D.  636. 

(a)  Duncan  v.  Worrall,  10  Price  31;  Thornton  v.  Knight,  16  Sim.  509. 

(b)  Brown  v.  Brown,  1  Dick.  62;  Gibson  v.  Ingo,  6  Hare,  112. 

(c)  Armitage  v.  Wadstoorth,  1  Mad.  192. 

(d)  Duncombe  v.  Mayer,  8  Ves.  320;  Leathes  v.  Leathes,  5  Ch.  D.  221;  Ind, 


298  EQUITY   JUEISPRUDENCE.  [CH.    XVI. 

doctrine  applies  to  other  instruments  and  securities,  such  as  bonds, 
negotiable  instruments,  and  other  evidences  of  property,  which  are 
improperly  withheld  from  the  persons,  who  have  an  equitable  or  legal 
interest  in  them  (e);  or  who  have  a  right  to  have  them  preserved. 
This  redress  a  court  of  common  law  was  incapable  of  a£Eording,  since 
the  prescribed  forms  of  its  remedies  rarely  enable  it  to  pronounce  a 
judgment  in  rem,  in  such  cases,  which  is,  or  can  be  made,  efiectual. 
It  is  true  that  an  action  of  replevin  might  in  some  few  cases  lie,  and 
give  the  proper  remedy,  if  the  thing  could  be  found,  and  in  that  event 
a  court  of  equity  disclaimed  jurisdiction  as  there  was  a  sufficient 
remedy  at  the  common  law  (/).  But  in  &n  action  of  detinue  there 
was  no  effective  judgment  in  rem  at  the  common  law  until  the  passing 
of  the  Mercantile  Law  Amendment  Act,  1856,  the  statutory  provisions 
being  now  embodied  in  sect.  52  of  the  Sale  of  Goods  Act,  1893  (56  & 
57  Viet.  c.  71),  and  R.  S.  C,  1883,  Order  XLVIII,  rule  1  (g).  And 
generally  in  other  actions  at  law,  damages  only  were  recoverable;  and 
such  a  remedy  must,  in  many  cases,  be  wholly  inadequate  (h).  This 
constitutes  the  true  ground  for  the  prompt  interposition  of  courts  of 
equity  for  the  recovery  of  the  specific  deeds  or  other  instruments. 

§  704.  Upon  similar  principles,  persons  having  rights  and  interests 
in  real  estate  are  entitled  to  come  into  equity  for  the  purpose  of 
having  an  inspection  and  copies  of  the  deeds  under  which  they  claim 
title  (t).  And  in  like  manner,  remaindermen,  and  reversioners,  and 
other  persons,  having  limited  or  ulterior  interests  in  real  estate,  have 
a  right  in  many  cases  to  come  into  equity,  to  have  the  title-deeds 
secured  for  their  benefit  (k)  or  their  interests  otherwise  secured.  But 
in  all  such  cases  the  court  will  exercise  a  sound  discretion  as  to  giving 
judgment;  for  it  is  by  no  means  an  absolute  right  of  the  party  to  have 
the  title-deeds  in  all  cases  secured,  or  brought  into  chancery  for 
preservation.  If  such  a  practice  was  suffered  universally  to  prevail, 
the  title-deeds  of  half  the  estates  in  the  country  might  be  brought  into 
court.  To  entitle  the  party,  therefore,  to  seek  relief,  it  must  clearly 
appear  that  there  is  danger  of  a  loss  or  destruction  of  the  title-deeds 
in  the  custody  of  the  persons  possessing  them ;  or  the  court  has  to 
undertake  the  administration  of  the  property ;  or  the  person  possessing 
them  has  incumbered  his  interest  (1). 

Goope  S  Co.  V.  Emmerson,  12  App.  Cas.  300.  See  In  re  Newen,  Newen  v.  Barnes, 
[1894]  2  Ch.  297. 

(e)  Gibson  v.  Ingo,  6  Hare,  112;  Williams  v.  Bayley,  L.  K.  1  H.  L.  200. 

(/)  See  Shaw  v.  Earl  Jersey,  4  C.  P.  D.  359. 

ig)  Phillips  V.  Jones,  15  Q.  B.  859;  Ex  parte  Drake,  in  re  Ware,  5  Ch.  D.  866. 

(h)  Fells  V.  Bead,  3  Ves.  70;  Dowling  v.  Betjermann,  'i  3.  &  H.  544. 

(i)  Lambert  v.  Rogers,  2  Mer.  489;  Hercy  v.  Ferrers,  4  Beav.  97;  Dams  v.  Earl 
of  Dysart,  20  Beav.  405;  Pennell  v.  Earl  of  Dysart,  27  Beav.  542;  Brown  v  Wales, 
L.  E.  15  Bq.  142. 

(h)  Jenner  v.  Morris,  L.  K.  1  Ch.  603;  Stanford  v.  Roberts,  L.  E.  6  Ch.  307. 

(Z)  Leathes  v.  Leathes,  5  Ch.  D.  223;  Ex  parte  Rogers,  26  Ch.  D.  31 ;  In  re  Newen, 
Newen  v.  Barnes  [1891]  2  Ch.  297. 


§  704 — 706.]  CANCELLATION  OF  DEEDS.  299 

§  704a.  A  party  may  have  covenanted  to  produce  deeds  or  have 
given  a  statutory  acknowledgment  to  the  like  purpose,  under  sect.  9 
of  the  Conveyancing  and  Law  of  Property  Act,  1881  (44  k  45  Vict, 
c.  41),  these  covenants  or  undertakings  may  be  enforced  specifically 
against  the  party  in  possession  of  the  muniments,  but  stand  upon  a 
different  footing  to  the  general  jurisdiction  exercised  where  no  contract 
exists. 

§  705.  Cases  also  may  occur,  where  a  deed,  or  other  instrument, 
originally  valid,  has,  by  subsequent  events,  such  as  by  satisfaction 
or  payment,  or  other  extinguishment  of  it,  legal  or  equitable,  become 
functus  officio;  and  yet,  its  existence  may  be  either  a  cloud  upon  the 
title  of  the  other  party,  or  subject  him  to  the  danger  of  some  future 
litigation  when  the  facts  are  no  longer  capable  of  complete  proof,  or 
have  become  involved  in  the  obscurities  of  time  (m).  Under  such 
circumstances,  although  the  deed  or  other  instrument  has  become  a 
nullity,  yet  courts  of  equity  will  interpose,  upon  the  like  principles,  to 
prevent  injustice,  and  will  decree  a  delivery  and  cancellation  of  the 
instrument.  This,  indeed,  is  a  very  old  head  of  equity;  and  traces  of 
it  are  to  be  found  in  some  of  our  earliest  reports  (»). 

§  705a.  A  debt  can  only  be  released  in  equity  if  there  exists  a  valid 
consideration  or  an  instrument  under  seal  (o),  or  if  the  creditor 
appoints  his  debtor  executor  and  manifests,  even  informally,  a  wish  to 
forgive  the  debt  (p).  Now  a  valuable  consideration  does  not  require 
a  benefit  to  the  promiser,  it  is  sufficient  that  the  promisee  performs 
some  act  required  of  him  by  the  promiser.  Accordingly,  if  the  debtor 
can  show  that  he  has  been  induced  to  alter  his  position  by  reason  of 
some  informal  promise  by.  the  creditor  to  forgive  the  debt,  in  terms 
compatible  with  a  present  gift  (q),  the  debtor:  is  entitled  to  a  cancella- 
tion or  return  of  any  security  which  he  may  have  given  to  his 
creditor  (r). 

§  706.  There  is  also  a  curious  case  of  an  analogous  nature,  which 
was  finally  decided  by  the  House  of  Lords,  in  which  the  powers  of  a 
court  of  equity  were  applied  to  give  relief  to  an  extent  which  no  court 
of  law  would  for  a  moment  have  entertained.  The  testator,  on  his 
death-bed,  said  to  his  executrix,  that  he  had  the  bond  of  B.,  but  when 
he  died  B.  should  have  it,  and  that  he  should  not  be  asked  or  troubled 
for  it.  The  executrix,  after  the  death  of  the  testator,  put  the  bond  in 
suit;  and  thereupon,  B.  brought  a  bill  for  a  discovery,  and  dehvery  up, 
and  cancellation  of  the  bond.  And  it  was  decreed  accordingly  at  the 
hearing  by  the  Lord  Chancellor,  and  his  decree  was  affirmed  by  the 

(to)  Flower  v.  Marten,  2  M.  &  Cr.  459;  Bond  v.  Walford,  32  Ch.  238. 
(n)  Gary,  17 ;  ante,  §  700. 

(o)  Cross  v.  Sprigg,  6  Hare,  552;  Peace  v.  Hains,  11  Hare,  151;  Gee  v.  Liddell, 
35  Beav.  629. 

(p)  Strong  v.  Bird,  L.  E.  18  Bq.  31S ;  In  re  Pink,  Pink  v.  Pink  [1912]  2  Ch.  528. 
fg)  See  Smith  v.  Warde,  15  Sim.  56;  In  re  Pink,  Pink  v.  Pink  [1912]  2  Ch,  528. 
(r)  Aston  v.  Pye,  cited  5  Ves.  at  p.  350;  Flower  v.  Marten,  2  M.  &  Cr.  459. 


300  EQUITY   JURISPRUDENCE.  [CH.    XVI. 

House  of  Lords  (s).  This  case  carries  the  doctrine  of  an  implied  trust 
or  equitable  extinguishment  of  a  debt  to  the  very  verge  of  the  law. 
The  case  would  be  clearly  unsupportable  as  a  donaiio  mortis  causa  as 
there  was  no  actual  tradition;  and  it  must  stand  upon  the  parol 
evidence  to  establish  a  trust  to  have  the  bond  delivered  up,  not  touched 
or  provided  for  by  the  testator's  will  (t). 

§  706a..  Whether  all  the  cases  referable  to  this  branch  of  equity 
are  strictly  maintainable  or  not,  having  regard  to  the  cases  which 
decide  that  the  Court  of  Chancery  would  not  enforce  voluntary  eon- 
tracts,  or  assist  the  donee  or  assignee  where  the  gift  or  assignment 
inter  vivos  was  voluntary,  is  a  topic  which  affords  some  difficulty  to 
the  student,  until  he  is  taught  or  reminded  that  there  is  another  class 
of  case  where  the  donor  or  assignor  has  done  all  that  is  possible  to 
divest  himself  of  any  beneficial  interest  in  favour  of  some  named  or 
ascertainable  person ;  in  other  words,  has  constituted  himself  a  trustee 
for  some  other  or  others  (u).  The  cases  are  all  reconcilable  in  point 
of  law,  the  difficulty  is  caused  in  applying  well  settled  principles  to 
divergent  facts,  and  the  inferences  that  difEerent  minds  will  draw  from 
particular  premises. 

§  706b.  The  topics  discussed  suggest  a  class  of  cases  which  occupy 
«ome  space  in  the  reports,  viz.,  the  setting  aside  of  voluntary  deeds 
and  settlements.  So  far  as  can  be  judged  relief  in  these  cases  has  only 
been  granted  where  the  settlor  is  a  person  incapable  of  forming  a  sane 
conclusion  by  reason  of  mental  infirmities  inherent  or  the  result  of 
advanced  years.  Judges  have  no  doubt  in  many  cases  given  wrong 
reasons  for  a  wise  conclusion.  In  so  doing  they  have  only  illustrated 
the  undoubted  fact  that  like  other  mortals  they  are  not  infallible  (x). 
This  much  is  clear  cujvs  est  dare  ejus  est  disponere,  therefore  a  power 
of  revocation  need  not  be  inserted  in  a  voluntary  settlement,  for  that 
would  be  tantamount  to  saying  that  a  man  cannot  give  what  is  his 
own.  The  matter  was  finally  disposed  of  by  the  full  Court  of  Appeal 
in  Chancery  (j/).  Nor  is  the  fact  that  the  deed  contains  absurd  and 
improvident  provisions  more  than  a  circumstance  of  evidence  that  a 
document  is  not  a  deliberate  expression  of  intention  (z).  The  party 
impeaching  the  validity  of  an  instrument  must  establish  his  case, 
omnia  rite  esse  acta  presumuntur  (a).     The  representatives  of  a  party 

(s)  Wekett  v.  Raby,  2  Bro.  P.  C.  by  Tomlins,  386. 

(t)  See  Ghamberlaine  v.  Ghamberlame ,  2  Freem.  34;  Reech  v.  Kennigate  Ambler 
67,  S.  C.  1  Ves.  Sen.  123. 

(«)  Kekewich  v.  Manning,  1  De  G.  M.  &  G.  176;  Cochrane  v.  Moore  25  O  B 
D.  57. 

(x)  "  Even  a  Lord  Chancellor  may  possibly  make  a  mistake,"  Lord  Macnaghten, 
Matton  V.  Harris  [1892],  A.  C.  647,  564. 

(y)  Hall  v.  Hall,  L.  E.  8  Ch.  430. 

(z)  Button  V.  Thompson,  23  Ch.  D.  278. 

(o)  Henry  v.  Armstrong,  18  Ch.  D.  668;  Tucker  v.  Bennett,  38  Ch.  D.  1. 


§  706a — 708.]  cancellation  of  deeds.  301 

entitled  to  rectify  an  instrument  enjoy  the  same  right  after  his 
death  (b). 

§  707.  In  all  these  cases,  where  a  delivery  up  or  cancellation  of 
deeds  or  other  instruments  is  sought,  either  upon  the  ground  of  their 
original  invalidity  or  of  their  subsequent  satisfaction,  or  because  the 
party  has  a  just  title  thereto  or  derives  an  interest  under  them,  courts 
of  equity  act  upon  an  enlarged  and  comprehensive  policy;  and,  there- 
fore, in  granting  the  relief,  they  will  impose  such  terms  and  qualifica- 
tions as  shall  meet  the  just  equities  of  the  opposing  party.  Thus,  for 
instance,  if  the  heir-at-law  seeks  a  discovery  and  delivery  of  the  title- 
deeds  of  the  estate  of  his  ancestor  against  a  jointress,  he  will  not  be 
allowed  the  relief  unless  upon  the  terms  of  confirming  her  jointure  (c). 
Cases  of  this  sort  afford  a  very  frequent  illustration  of  the  maxim,  that 
he  who  seeks  the  aid  of  equity  must  do  equity. 

§  708.  There  yet  remains  another  class  of  cases  in  which  the 
remedial  power  of  courts  of  equity  was  applied  to  compel  a  specific 
delivery  of  the  thing  to  which  another  person  had  a  clear  right.  We 
here  allude  to  the  jurisdiction  toi  entertain  actions  for  the  delivery  of 
specific  chattels.  Ordinarily,  in  cases  of  chattels,  courts  of  equity  did 
not  interfere  to  decree  a  specific  delivery,  because  by  an  action  at  law 
a  full  compensation  could  be  obtained  in  damages,  although  the  thing 
itself  could  not  be  specifically  obtained  before  the  passing  of  the 
Mercantile  Law  x\mendment  Act,  1856  (19  &  20  Vict.  c.  97),  which, 
by  sect.  2,  conferred  a  right  upon  common  law  courts  to  compel  specific 
delivery  of  goods.  These  provisions  have  been  replaced  by  sect.  52 
of  the  Sale  of  Goods  Act,  1892  (56  &  57  Vict.  c.  71),  which  confers  a 
discretionary  power  to  enforce  specifically  a  contract  to  deliver  specific 
or  ascertained  goods.  Where  the  remedy  at  law  was  perfectly  adequate 
and  effectual  to  redress  the  injury,  there  was  no  reason  why  courts  of 
equity  should  afford  any  aid  to  the  party  (d).  Indeed,  it  may  be  truly 
said,  that  the  value  of  goods  and  merchandise  varies  so  much  at 
different  times  that  it  might  not  unfrequently  be  inequitable  to  decree 
a  specific  performance  of  contracts  respecting  them,  since  it  might  be 
wholly  disproportionate  to  the  injury  sustained.  Where  the  seller  has 
contracted  to  sell  chattels  to  the  plaintiff  and  further  that  he  will  not 
sell  them  to  any  one  else,  although  the  court  might  not  enforce  the 
contract  so  as  to  compel  specific  delivery,  it  would  prevent  a  sale  in 
breach  of  the  negative  stipulation  by  injunction  (e),  and  a  person 
knowing  the  terms  of  the  contract  could  derive  no  benefit  from  the 
breach  (/). 

(b)  Anderson  v.  Elsworth,  3  Giff.  154. 

(c)  Towers  v.  Davys,  1  Vern.  479;  Petre  v.  Petre,  3  Atk.  511. 

(d)  Buxton  v.  Lister,  3  Atk.  383;  Fothergill  v.  Rowland,  L.  E.  17  Eq.  132; 
Dominion  Coal  Co.  v.  Dominion  Steel  and  Iron  Co.  [1909] ,  A.  C.  293. 

(e)  Donnell  v.  Bennett,  22  Ch.  D.  835. 

(/)  Beech,  v.  Ford,  7  Hare,  208;  De  Mattos  v.  Gibson,  4  De  G.  &  J.  276;  National 
Phonograph  Co.  v.  Edison  Bell  National  Phonograph  Co.  [1908]  1  Ch.  335. 


302  EQUITY   JURISPRUDENCE.  [CH.    XVI. 

§  709.  But  there  are  cases  of  personal  goods  and  chattels  in  which 
the  remedy  at  law  by  damages  would  be  utterly  inadequate,  and  leave 
the  injured  party  in  a  state  of  irremediable  loss.  In  all  such  cases 
courts  of  equity  would  interfere,  and  grant  full  relief  by  requiring  a 
specific  delivery  of  the  thing  which  was  wrongfully  withheld.  This 
may  occur  where  the  thing  is  of  a  peculiar  value  and  importance,  and 
the  loss  of  it  cannot  be  fully  compensated  in  damages  when  withheld 
from  the  owner,  and  then  relief  will  be  granted  in  equity  (g).  Thus, 
where  the  lord  of  a  manor  was  entitled  to  an  old  altar-piece,  made  of 
silver,  and  remarkable  for  a  Greek  inscription  and  dedication  to 
Hercules,  as  treasure-trove  within  his  manor,  and  it  had  been  sold  by 
a  wrongdoer,  it  was  decreed  to  be  delivered  up  to  the  lord  of  the  manor, 
as  a  matter  of  curious  antiquity,  which  could  not  be  replaced  in  value, 
and  which  might,  by  being  defaced,  become  greatly  depreciated  (h). 
So,  where  an  estate  was  held  by  the  tenure  of  a  horn,  and  a  bill  was 
brought  by  the  owner  to  have  it  delivered  up  to  him,  it  was  held  main- 
tainable, for  it  constituted  an  essential  muniment  of  his  title  (i).  The 
same  rule  has  been  applied  to  a  box  of  jewels  (fc).  The  same  principle 
applies  to  any  other  chattel  whose  principal  value  consists  in  its 
antiquity;  or  its  being  the  production  of  some  distinguished  artist;  or 
in  its  being  a  family  relic,  ornament,  or  heirloom ;  such,  for  instance, 
as  ancient  gems,  medals,  and  coins;  ancient  statues  and  busts;  paint- 
ings of  old  and  distinguished  masters;  and  even  those  of  a  modem 
date,  having  a  peculiar  distinction  and  value,  such  as  family  pictures 
and  portraits  and  ornaments,  and  other  things  of  a  kindred  nature  (I). 
In  some  instances  a  fiduciary  relation  has  existed  between  the  parties, 
and  this  is  regarded  as  an  additional  reason  for  the  exercise  of  the 
equitable  jurisdiction  to  decree  specific  delivery  (m). 

§  710.  There  are  other  eases,  where  courts  of  equity  have  inter- 
fered to  decree  a  specific  delivery  of  chattels  under  an  agreement  of 
sale,  or  for  an  exclusive  possession  and  enjoyment  for  a  term  of  years. 
But  all  these  cases  stand  upon  very  peculiar  circumstances,  where 
the  nature  of  the  remedy  at  law  is  inadequate  to  complete  redress; 
or  where  some  other  ingredients  of  equity  jurisdiction  are  mixed  up  in 
the  transaction,  such  as  the  necessity  of  interference  to  prevent  mul- 
tiplicity of  suits,  or  irreparable  mischief  (n).  Thus,  for  instance, 
where,  on  the  dissolution  of  a  partnership,  an  agreement  was  made 
that  a  particular  book  used  in  the  trade  should  be  considered  the 
exclusive  property  of  one  of  the  partners,  and  that  a  copy  of  it  should 

(g)  Fells  V.  Read,  3  Ves.  70. 
(h)  Duke  of  Somerset  v.  Gookson,  3  P.  Will.  390. 
(i)  Pusey  v.  Pusey,  1  Vern.  273. 

(k)  Saville  v.  Tankred,  1  Ves.  Sen.  101,  Belt's  Suppl.  70. 
(I)  Fells  V.  Read,  3  Ves.  Jun.  70. 

(m)  Wood  V.  RowcUffe,  3  Hare,  304,  affd.  2  Ph.  382 ;  Pooley  v.  Rudd,  14  Beav.  34. 
(n)  See  Nutbrown  v.  Thornton,  10  Ves.  159 ;  Thompson  v.  Harcourt,  1  Bro.  P.  G. 
193;  Arundell  v.  Phipps,  10  Ves.  139;  Lloyd  v.  Loaring,  6  Ves.  773. 


§  709 — 711.]  CANCELLATION  OF  DEEDS.  303 

be  given  to  the  other,  a  specific  performance  of  the  agreement  was 
decreed  as  to  the  copy ;  for  it  is  clear,  that  at  law  no  adequate  redress 
could  have  been  obtained  (o).  So,  a  decree  was  made  against  a  lessee 
of  alum-works,  to  prevent  an  apprehended  breach  of  a  covenant,  to 
leave  a  certain  amount  of  stock  on  the  premises  at  the  expiration  of 
the  term;  there  being  ground  of  suspicion  that  he  did  not  mean  to 
perform  the  covenant  (p).  So,  a  decree  was  made  against  a  land- 
lord, to  restore  to  a  tenant  certain  farm  stock  taken  by  the  former 
in  violation  of  the  terms  of  his  contract  (g).  These  cases  all  proceed 
upon  the  same  principle  oiquia  timet,  and  the  danger  of  irreparable 
mischief  (r). 

§  711.  And  formerly,  where  the  court  would  not  decree  a  specific 
performance  and  delivery  of  chattels,  it  would  yet  entertain  the  suit 
to  decree  compensation  against  the  party  for  his  omission  to  perform 
his  contract.  Thus,  for  instance,  where  there  was  a  contract  for  the 
delivery  of  specific  stock,  the  court  refused  to  decree  a  specific  per- 
formance, but,  at  the  same  time,  entertained  the  bill  for  the  purpose 
of  giving  compensation  for  the  non -delivery  (s).  But  this  subject 
will  naturally  come  more  properly  under  review  in  the  succeeding 
chapter. 

(o)  Lingen  v.  Simpson^  1  Sim.  &  Stu.  600. 

(p)  Ward  V.  Duke  of  Buckingham,  cited  10  Ves.  161. 

(g)  Nutbrown  v.  Thornton,  10  Ves.  159. 

(r)  Nutbrown  v.  Thornton,  10  Ves.  159. 

(«)  Cud  V.  Rutter,  1  P.  Will.  570,  and  Cox's  notee  (2  and  3). 


304  SPECIFIC     PEBFOEMANCE.  [CH.    XVII. 


CHAPTER    XVII. 

SPECIFIC    PERFORMANCE    OF    AGREEMENTS     AND     OTHER     DUTIES. 

§  712.  Having  thus  gone  over  some  of  the  principal  grounds  upon 
which  courts  of  equity  will  interpose  to  decree  the  rescission,  cancella- 
tion, or  delivery  up  of  agreements,  securities,  and  other  instruments, 
and  the  delivery  of  chattels  to  the  rightful  owners,  we  shall  in  th& 
next  place  pass  to  the  consideration  of  the  other  branch  of  our 
inquiries;  namely,  what  are  the  cases  in  which  courts  of  equity  will 
interpose  and  decree  a  specific  performance  of  agreements? 

§  713.  With  reference  to  the  present  subject,  agreements  may  be- 
divided  into  three  clases :  (1)  those  which  respect  personal  property ; 
(2)  those  which  respect  personal  acts ;  and  (3)  those  which  respect 
real  property.  And  we  shall  presently  see,  that  the  jurisdiction  now 
actually  exercised  by  courts  of  equity  is  not  co-extensive  in  all  these 
classes  of  cases,  but  at  the  same  time  it  may  be  fairly  resolved  into 
the  same  general  principles. 

§  714.  It  is  well  known  that  by  the  common  law  every  contract  or 
covenant  to  sell  or  transfer  a  thing,  if  there  was  no  actual  transfer, 
was  treated  as  a  mere  personal  contract  or  covenant;  and,  as  such, 
if  it  remained  unperformed  by  the  party,  no  redress  could  be  had, 
except  in  damages ;  this  was  in  effect,  in  all  cases,  allowing  the  party 
the  election  either  to  pay  damages,  or  to  perform  the  contract  or 
covenant  at  his  sole  pleasure.  But  courts  of  equity  deemed  such  a 
course  in  many  instances  inadequate  for  the  purposes  of  justice ;  and, 
considering  it  a  violation  of  moral  and  equitable  duties,  they  did  not 
hesitate  to  interpose,  and  require  from  the  conscience  of  the  offending 
party  a  strict  performance  of  what  he  could  not,  without  manifest 
wrong  or  fraud,  refuse. 

§  716.  The  jurisdiction  of  courts  of  equity  to  decree  a  specific 
performance  of  contracts,  is  not  dependent  upon,  or  affected  by,  the 
form  or  character  of  the  instrument.  What  these  courts  seek  to  be 
satisfied  of  is,  that  the  transaction  in  substance  amounts  to,  and  is 
intended  to  be,  a  binding  agreement  for  a  specific  object,  whatever 
may  be  the  form  or  character  of  the  instrument.  Thus,  if  a  bond 
with  a  penalty  is  made  upon  condition  to  convey  certain  lands  upon 
the  payment  of  a  certain  price,  it  will  be  deemed  in  equity  an 
agreement  to  convey  the  land  at  all  events  and  not  to  be  discharged 
by  the  payment  of  the  penalty,   although  it  has  assumed  the  form 


§    712 — 717.]  SPECIBIC     PERFORMANCE.  305 

of  a  conditdon  only  (a).  Courts  of  equity,  in  all  cases  of  this  sort, 
look  to  the  substance  of  the  transaction,  and  the  primary  object  of  the 
parties;  and  where  that  requires  a  specific  performance,  they  will 
treat  the  penalty  as  a  mere  security  for  its  due  performance  and 
attainment. 

§  716.  The  jurisdiction  of  courts  of  equity  to  decree  a  specific 
performance  of  agreements,  is  certainly  of  a  very  -ancient  date,  if  it 
be  not  coeval  with  the  existence  of  these  courts  in  England.  It  may 
be  distinctly  traced  back  to  the  reign  of  Edward  IV. ;  for,  in  the 
Year  Book  of  8th  Edward  IV.  46,  it  was  expressly  recognized  by 
the  Chancellor  as  a  clear  jurisdiction.  But  the  particular  instance 
given  there  arguendo  and  assented  to  by  the  Chancellor  is  a  promise  to 
build  a  house.  This  jurisdiction  was  exercised  so  lat©  as  1740  (b)  to 
the  fullest  extent ;  but  although  not  disclaimed  in  its  entirety  at  the 
present  day,  it  is  only  exercised  within  such  narrow  limits  that  it 
is  practically  non-existent  (c).  Whatever  may  be  the  origin  and 
antiquity  of  the  jurisdiction  to  decree  a  specific  performance,  it  is 
now  clearly  established,  and  is  in  daily  and  most  beneficial  exercise 
for  the  purposes  of  justice.  The  ground  of  the  jurisdiction  is,  that  a 
court  of  law  is  incompetent  to  decree  a  specific  performance,  and  can 
relieve  the  injured  party  only  by  a  compensation  in  damages,  which, 
in  many  cases,  would  fall  far  short  of  the  redress  which  his  situation 
might  require.  Wherever,  therefore,  the  party  wants  the  thing  in 
specie,  axid  he  cannot  otherwise  be  fully  compensated,  courts  of  equity 
will  generally  grant  him  a  specific  performance  (d). 

§  717.  And  this  constitutes  the  true  and  leading  distinction  in  the 
present  exercise  of  equity  jurisdiction  in  regard  to  decreeing  specific 
performance.  It  does  not  proceed  (as  is  sometimes  erroneously  sup- 
posed) upon  any  distinction  between  real  estat«  and  personal  estate; 
but  upon  the  ground,  that  damages  at  law  may  not,  in  the  particular 
case,  afford  a  complete  remedy  (e).  Thus,  courts  of  equity  will  decree 
performance  of  a  contract  for  land,  not  because  of  the  particular 
nature  of  land,  but  because  the  damages  at  law,  which  must  be 
calculated  upon  the  general  value  of  land,  may  not  be  a  complete 
remedy  to  the  purchaser,  to  whom  the  land  purchased  may  have  a 
peculiar  and  special  value  (/).  So,  courts  of  equity  would  not 
generally  decree  performance  of  a  contract  for  the  sale  of  stock  or 
goods ;  not  because  of  their  personal  nature,  but  because  the  damages 
at  law,  calculated  on  the  market-price  of  the  stock  or  goods,  are  as 

(a)  Logan  v.  Wienholt,  1  CI.  &  P.  611;  French  v.  Macale,  2  Dru.  &  War.  269; 
Jones  V.  Heavens,  i  Ch.  D.  636;  National  Provincial  Bk.  v.  Marshall,  40  Ch.  D.  112. 

(b)  Pembroke  v.  Thorpe,  2  Swanst.  437  n. 

(c)  Wolverhampton  (Corp),  v.  Emmons  [1901]  1  K.  B.  515. 

(d)  Doloret  v.  Rothschild,  1  Sim.  &  Stu.  590 ;  Adderley  v.  Dixon,  1  Sim.  &  Stu.  607  ; 
Eastern  Counties  Ry.  v.  Hawkes,  5  H.  L.  C.  331. 

(e)  Adderley  v.  Dixon,  1  Sim.  &  Stu.  607. 

(/)  Hall  V.  Warren,  9  Ves.  606;  Eastern  Counties  Ry.  v.  Hawkes,  6  H.  L.  C.  331. 

20 


306  EQUITY    JURISPRUDENCE.  [CH.    XVII. 

complete  a  remedy  for  the  purchaser,  as  the  deliveryof  the  stock  or 
goods  contracted  for ;  inasmuch  as  with  the  damages  he  may  ordinarily 
purchase  the  same  quantity  of  the  like  stock  or  goods  (g). 

§  718.  But  although  the  general  rule  now  is,  not  to  entertain 
jurisdiction  in  equity  for  a  specific  performance  of  agreements 
respecting  goods,  chattels,  stock,  chases  in  action,  and  other  things 
of  a  merely  personal  nature;  yet  the  rule  is  (as  we  have  seen)  a 
qualified  one,  and  subject  to  exceptions;  or,  rather,  the  rule  is  limited 
to  cases  where  a  compensation  in  damages  furnishes  a  complete  and 
satisfactory  remedy.  Instances  have  already  been  given  (h)  and 
may  be  supplemented  by  the  following  illustrative  cases :  A  foreign 
ship  in  an  English  port-,  where  the  owner  was  abroad,  and  not 
amenable  to  the  jurisdiction  of  the  English  courts  (0;  or  goods 
exportable  duty  free,  none  other  enjoying  the  same  privilege  being 
available  (fc). 

§  719.  Lord  Hardwicke  has  himself  put  the  case  of  a  shipbuilder 
contracting  for  the  purchase  of  a  great  quantity  of  timber,  by  reason 
of  the  vicinity  of  the  timber,  and  this  may  be  well  known  and 
understood  on  the  part  of  the  seller,  in  which  case  a  specific 
performance  might  be  indispensable  to  justice  (l).  It  was  held  by 
Vice-Chancellor  Kindersley,  in  Falcke  Vr  Gray  (m),  that  specific 
performance  of  a  contract  for  the  sale  of  a  chattel  will  be  decreed 
where  pecuniary  damages  would  not  be  an  adequate  compensation, 
as  where  the  article  is  of  unusual  distinction  and  curiositj',  and  of 
doubtful  value.  And  in  another  more  recent  case  (n),  it  was  said 
the  courts  of  equity  have  jurisdiction  to  order  the  delivery  up  to  an 
artist  of  a  picture  painted  by  himself,  as  having  a  special  value,  and 
the  legal  remedy  being  inadequate. 

§  720.  Other  illustrations  may  be  found  in  cases,  not  merely  of 
sales,  but  of  matters  peculiarly  resting  in  contracts  of  a  very  different 
nature.  Thus,  where  a  covenant  was  made  in  a  lease  of  some  alum- 
works,  to  leave  certain  stock  upon  the  premises,  a  specific  performance 
was  decreed;  because  the  trade  would  be  greatly  damaged  if  the 
covenant  were  not  specifically  performed,  contrary  to  the  real  justice 
of  the  case  between  the  parties,  and  the  landlord  had  stipulated  for 
a  sort  of  enjoyment  of  the  premises  after  the  expiration  of  the 
lease  (o). 

§  721.  Of  the  like  nature  are  the  common  cases  of  covenants 
between  landlords  and  tenants,  where  injunctions,  in  the  nature  of  a 

(g)  Doloret  v.  Rothschild,  1  Sim.  &  Stu.  590. 

(h)  Ante,  §  708. 

(s)  Hart  V.  Herwig,  L.  E.  8  Ch.  860. 

(k)  See  Hughes  v.  Orteme,  33  L.  J.  Q.  B.  335. 

(I)  Buxton  v.  Lister,  3  Atk.  384,  385. 

(m)  Falcke  v.  Gray,  1  Drew.  651. 

(n)  Dowliyig  v.  Betjemann,  2  J.  &  H.  544. 

(o)  Ward  v.  Duke  of  Buckingham,  cited  10  Ves.  161. 


§    718 724.]  SPECIFIC     PEEFOEMANCE.  307 

specific  performance,  are  often  decreed;  as,  for  instance,  covenants 
not  to  remove  manure  or  crops  at  the  end  of  a  lease;  covenants  not 
to  plough  meadovir;  covenants  not  to  dig  gravel,  sand,  or  coal.  In  all 
cases  of  this  sort,  although  tlie  court  acts  merely  by  injunction,  to 
prevent  the  breach  of  the  particular  covenant,  it  in  effect  secures 
thereby  a  specific  performance ;  and  it  may  at  once  be  seen,  that  such 
interposition  is  indispensable  to  prevent  irreparable  mischief  (p). 

§  722.  Cases  of  agreements  to  form  a  partnership,  and  to  execute 
articles  accordingly,  may  also  be  specifically  decreed,  although  they 
relate  exclusively  to  chattel  interests;  if  no  adequate  compensation 
can,  in  such  cases,  be  made  at  lave  (g).  Upon  the  like  ground  courts 
of  equity  vi^ill  decree  the  specific  performance  of  a  covenant  to  grant 
a  lease,  or  to  renew  a  lease  (r) ;  so,  of  a  contract  for  the  sale  of  the 
goodwill  of  a  trade,  and  of  a  valuable  secret  connected  with  it  (s) ; 
so,  of  a  contract  to  keep  the  banks  of  a  river  or  canal  in  repair  (i) ; 
so,  of  a  contract  for  the  sale  of  an  annuity  payable  out  of  the  dividends 
of  stock  (u) ;  so,  of  a  contract  for  the  sale  of  debts  proved  under  a 
commission  of  bankruptcy,  where  an  assignment  of  the  debt  had  not 
been  already  executed  (x) ;  so,  if  a  party  covenants  that  he  will  not 
carry  on  his  trade  within  a  certain  distance  or  in  a  certain  place, 
within  which  the  other  party  carries  on  the  same  trade,  a  court  of 
equity  will  restrain  the  party  from  breaking  the  agreement  so  made, 
if  valid  (y).  In  each  of  these  cases,  the  judgment  operates,  pro  tardo, 
as  a  specific  performance. 

§  723.  Where  the  specific  performance  of  a  contract  respecting 
chattels  will  be  decreed  upon  the  application  of  one  party,  courts  of 
equity  will  maintain  the  like  suit  at  the  instance  of  the  other  party, 
although  the  relief  sought  by  him  is  merely  in  the  nature  of  a  com- 
pensation in  damages  or  value;  for,  in  all  such  cases,  the  court  acts 
upon  the  ground  that  the  remedy,  if  it  exists  at  all,  ought  to  be 
mutual  and  reciprocal,  as  well  for  the  vendor  as  for  the  purchaser  {z). 

§  724.  Although  the  doctrine  seems  well  settled,  that  a  contract 
for  the   sale   of   government   stock   will   not  now   be   ordered   to    be 


(p)  City  of  London  v.  Pugh,  i  Bro.  P.  C.  395;  Kimpton  v.  Eve,  2  Ves.  &  B.  349; 
Pratt  V.  Brett,  2  Madd.  62;  French  v.  Macale,  2  Dru.  &  War.  269. 

(g)  See  ante,  §  §  666-668a. 

(r)  Earl  of  Shelburne  v.  Biddulph,  6  Bro.  P.  C.  356;  Burke  v.  Smyth,  3-Jo.  &  Lat. 
193;  Moss  v.  Barton,  L.  E.  1  Eq.  474. 

(s)  Bryson  v.  Whitehead,  1  Sim.  &  Stu.  74.  But  see  Baxter  v.  Conolly,  1  Jac.  & 
Walk.  576;  Coslake  v.  Till,  1  Euss.  378. 

(t)  Lane  v.  Newdigate,  10  Ves.  192. 

(it)  Withy  V.  Cottle,  1  Sim.  &  Stu.  174.  See  also  Pritchard  v.  Ovey,  1  Jac.  & 
Walk.  396. 

(x)  Adderley  v.  Dixon,  1  Sim.  &  Stu.  607;  Wright  v.  Bell,  5  Price.  326. 

(y)  Lumley  v.  Wagner,  1  De  G.  M.  &  G.  604;  Morris  v.  Saxelby,  [1916]  A.  C. 
688. 

(z)  Withy  v.  Cottle,  1  Sim.  &  Stu.  174;  Adderley  v.  Dixon,  1  Sim.  &  Stii.  607; 
Forrest  v.  Elwes,  4  Ves.  497 ;  Flight  v.  Bolland,  4  Euss.  298. 


308  EQUITY     JDRISPKUDENCE.  [CH.    XVII. 

specifically  performed  because  it  is  ordinarily  obtainable  in  the  market, 
and  the  damage  suffered  (if  aoy)  is  capable  of  an  exact  compensation 
in  damages;  yet  it  is  well  known,  that,  as  late  as  Lord  Hardwicke's 
time,  such  contracts  were  so  decreed  in  Chancery  (a).  And,  in  more 
recent  times,  it  has  been  held,  that  an  action  will  lie  for  specific 
performance  of  a  contract  for  the  purchase  of  government  stock  in 
favour  of  a  holder  of  scrip  receipts,  purporting  to  give  the  title  to  the 
bearer  thereof  where  the  bill  prayed  for  the  delivery  of  the  certificates, 
which  gave  the  legal  title  to  stock,  upon  the  ground  that  a  court 
of  law  could  not  give  the  property;  but  could  only  give  a  remedy  in 
damages,  the  beneficial  effect  of  which  must  depend  upon  the  personal 
responsibility  of  the  party  (b).  If  this,  however,  be  a  sufficient  ground 
to  entertain  the  jurisdiction,  it  seems  universally  applicable  to  all 
bills  for  a  specific  performance.  In  the  case  of  a  contract  to  convey 
shares  in  a  railway,  or  other  private  corporation,  specific  performance 
is  the  appropriate  remedy,  because  such  shares  are  of  uncertain 
value,  and  not  always  readily  obtainable  in  the  market  (c). 

§  725.   Some    of   the   cases   already    stated    are   not   purely   cases 
respecting  the- sale,  transfer,  or  enjoyment  of  personal  chattels;  but 
may  properly   be  deemed  to   involve  personal  acts   and  proceedings. 
But  it  is  difficult  to  separate  the  one  class  entirely  from  the  other; 
and  they  naturally  flow  into  each  other.     In  regard,  however,  to  con- 
tracts for  personal  acts  and  proceedings,  there  is  some  diversity  of 
judgment  in  the   authorities,   as  to  the   cases   and  circumstances   in 
which  a  specific  performance  ought  to  be  decreed  in  equity.     Thus, 
for  example,  it  has  been  a  matter  of  some  conflict  of  opinion,  how  far 
.courts  of  equity  ought  to  entertain  a  suit  for  the  specific  performance 
of  a  covenant  to  build  or  rebuild  a  house  of  a  specified  form  and  size 
on  particular  land.     In  the  earlier  cases,  the  jurisdiction  was  main- 
tained (d) ;  and  Lord  Hardwicke  recognized  it  in  its  full  extent,  at  the 
same  time  that  he  denied  that  a  covenant  to  repair  a  house  ought  to 
be  specifically  performed  (e).     In  more  recent  times  the  jurisdiction 
has  not  been  disputed,   but  it  has  come  to  be  recognized  that  its 
exercise  is  likely  to  inflict  hardship   upon  the  defendant,   while  the 
plaintiff   would    be    amply    compensated    by    an    award    of   damages. 
The  rule  now  established  is  that  specific  performance  of  a  contract 
to  build  will  not  be  granted  unless  the  three  following  circumstances 
all  occur:    The  first  is  that  the  building  work  is  so  clearly  defined 
by  the  contract  that  the  court  can  see  what  is  the  exact  nature  of  the 

(a)  Cud  V.   Rutter,  1  P.  Will.  570,  571;  Nutbrown  v.  Thornton,  10  Ve«.  161? 
Mason  v.  Armitage,  13  Ves.  25. 

(b)  Doloret  v.  Rothschild,  1  Sim.  &  Stu.  590. 

(c)  Duncuft  V.  Albrecht,  12  Sim.  189 ;  Cheale  v.  Kenward,  3  De  G.  &  J.  27 ;  Poole 
V.  Middleton,  29  Beav.  646. 

{(/)  Holt  V.  Holt,  2  Vern.  322;  Allen  v.  Harding,  2  Eq.  Abr.  17,  pi.  6. 
(e)  City  of  London  v.  Nash,  3  Atk.  511,  515;  Pembroke  v    Thorp,  3  Swanst.  437, 
note;  Rook  v.  Worth,  1  Ves.  Sen.  461. 


§  725 — 730.]  SPECIFIC    performance.  309 

work  to  be  done;  secondly,  that  damages  will  not  be  an  adequate 
compensation  for  a  breach  of  the  contract  to  execute  the  work;  and 
thirdly,  that  the  defendant  has  obtained  possession  of  the  land  upon 
which  the  work  is  to  be  done  on  the  faith  of  his  contract  to  build  (/). 
§  729.  In  regard  to  many  other  contracts  for  personal  acts  and 
proceedings,  which  are  of  a  very  different  character,  similar  observa- 
tions may  apply.  Thus,  for  instance,  a  covenant  to  renew  a  lease, 
will,  as  we  have  seen,  be  specifically  decreed  (g).  So,  a  covenant  to 
invest  money  in  lands,  and  settle  it  in  a  particular  manner  (h).  So, 
an  agreement  to  settle  the  boundaries  between  two  estates  (i).  And 
generally  courts  of  equity  will  compel  acts  to  be  performed  to  clothe 
a  party  with  a  legal  title,  as  by  the  execution  of  formal  instruments, 
or  the  indorsing  of  negotiable  instruments  (k).  Many  other  cases 
might  easily  be  put  to  illustrate  the  same  doctrine;  as  the  case  of  a 
covenant  not  to  build  upon  a  contiguous  estate,  to  the  injury  of  an 
ancient  messuage ;  of  a  covenant  not  to  cut  down  timber-trees,  which 
are  peculiarly  ornamental  to  the  mansion  of  the  covenantee ;  of  a 
covenant  not  to  erect  any  noisome  or  injurious  manufacturing  estab- 
lishment on  an  estate  adjacent  to  that  of  the  covenantee ;  of  a  covenant 
not  to  carry  on  the  same  trade  with  the  covenantee  in  the  same  street 
or  town ;  and  of  a  covenant  that  a  house  to  be  built  adjacent  to 
other  houses  should  correspond  with  them  in  its  elevation  (I). 

§  730.  Courts  of  equity  will,  upon  analogous  principles,  interpose 
in  many  cases,  to  decree  a  specific  performance  of  express,  and  even 
of  implied  contracts,  where  no  actual  injury  has  as  yet  been  sus- 
tained, but  it  is  only  apprehended  from  the  peculiar  relation  between 
the  parties.  This  proceeding  is  commonly  called  a  bill  Quia  timet, 
in  analogy  to  some  proceedings  at  law,  where,  in  some  cases,  a  writ 
may  be  maintained  before  any  actual  molestation,  distress,  or  im- 
pleading of  the  party  (m).  Thus,  as  we  have  seen,  a  surety  may  file  a 
bill  to  compel  a  debtor,  on  a  bond  in  which  he  has  joined,  to  pay  the 
debt  when  due,  whether  the  surety  has  been  actually  sued  or  not  (n.). 
And  upon  a  covenant  to  save  harmless,  a  bill  may  be  filed  to  relieve 
the  covenantee  under  similar  circumstances  (o).  So,  where  property  is 
covenanted  to  be  secured  for  certain  purposes,  and  in  certain  events, 

(/)  Storer  v.  G.  W.  Ry.,  2  Y.  &  C.  Ch.  48;  Wilson  v.  Northampton  and  Banbury 
By.,  L.  E.  8  Ch.  279;  Wolverhampton  (Corp.)  v.  Emmons,  [1901]  1  K.  B.  515. 

(g)  Earl  of  Shelburne  v.  Biddulph,  6  Bro.  P.  C.  356;  Burhe  v.  Smyth,  3  Jo.  & 
Lat.  193. 

(h)  Vernon  v.  Vernon,  2  P.  Wms.  594;  Jeston  v.  Key,  L.  E.  6  Ch.  610;  Lee  v. 
Lee,  4  Ch.  D.  175. 

(i)  Penn  v.  Lord  Baltimore,  1  Ves.  Sen.  444. 

(k)  Lyde  v.  Munn,  1  Myl.  &  K.  683;  Claringbould  v.  Curtis,  21  L.  J.  Ch.  541. 

(l)  Renals  v.  Cowlishaw,  11  Ch.  D.  866;  Spicer  v.  Martin,  14  App.  Cas.  12. 

(m)  Co.  Litt.  100  a;  post,  §  825,  826,  850. 

(n)  WooUridge  v.  Norris,  L.  E.  6  Eq.  410.;  AscHcrman  v.  Tredegar  Dry  Dock 
Co.,  [1909]  2  Ch.  401. 

(o)  Pember  v.  Mathers,  1  Bro.  C.  C.  53. 


310  EQUITY     JURISPRUDENCE.  [CH.    XVII. 

and  there  is  danger  of  its  being  alienated  or  squandered,  courts  of 
equity  will  interpose  to  secure  the  property  for  original  purposes  (p). 
And,  generally,  it  may  be  stated,  that  in  cases  of  contracts,  express 
or  implied,  courts  of  equity  will  interpose  to  preserve  the  funds 
devoted  to  particular  objects  under  such  contracts,  and  decree,  what 
in  effect  is  a  specific  performance,  security  to  be  given,  or  the  fund 
to  be  placed  under  the  control  of  the  court.  This  subject  will  present 
itself  in  some  other  aspects  hereaiter;  and  does  not,  therefore,  require 
a  fuller  development  in  this  place  (q). 

§  736.  In  cases  of  covenants  and  other  contracts,  where  a  specific 
performance  is  sought,  it  is  often  material  to  consider  how  far  the 
reciprocal  obligations  of  the  party  seeking  the  relief  have  been 
fairly  and  fully  performed.  For  if  the  latter  have  been  disregarded, 
or  they  are  incapable  of  being  substantially  performed  on  the  part  of 
the  party  so  seeking  relief,  or  from  their  nature  they  have  ceased  to 
have  any  just  application  by  subsequent  events,  or  it  is  against  public 
policy  to  enforce  them,  courts  of  equity  will  not  interfere.  Thus, 
where  two  persons  had  agreed  to  work  a  coach  from  Bristol  to 
London,  one  providing  the  horses  for  a  part  of  the  road,  and  the 
other  for  the  remainder;  and,  in  consequence  of.  the  horses  of  the 
latter  being  taken  in  execution,  the  former  was  obliged  to  furnish 
horses  for  the  whole  road,  and  claimed  the  whole  profits;  the  court, 
on  a  bill  by  the  party,  who  was  so  in  default,  for  an  account  of  the 
profits,  and  to  restrain  the  other  party  from  working  the  coaches  with 
his  own  horses  on  the  whole  road,  refused  to  interfere;  because  the 
default  might  again  occur,  and  subject  the  defendant  to  an  action  (r). 
On  the  other  hand,  where  a  husband  sought  to  prove  against  his 
deceased  father-in-law's  estate  for  the  value  of  his  life  interest  in 
certain  property  which  his  father-in-law  had  covenanted  to  settle; 
it  was  held  to  be  no  answer  that  the  husband  had  not  performed  the 
stipulations  in  the  same  settlement  in  respect  of  property  which  he 
was  to  settle,  he  being  entitled  thereto  for  life  and  entitled  in  the 
event  which  had  happened  of  the  death  of  his  wife  without  issue,  to 
a  general  power  of  appointment  over  that  fund,  and  consequently 
able  to  defeat  the  trusts  of  the  settlement  to  that  extent  (s). 

§  737.  So,  where  a  conveyance  in  fee  had  been  made  of  certain 
lands,  and  the  feoffee  covenanted  not  to  use  the  land  in  a  particular 
manner,  with  a  view  to  the  more  ample  enjoyment  of  the  adjoining 

(p)  Spiller  V.  SpHler,  3  Swanst.  556 ;  London  and  County  Bk.  v.  Lewis  21  Ch  D 
490. 

(<?)  §  §  731  to  736  are  taken  up  with  a  discussion  as  to  -whether  a  specific  perform- 
ance would  be  decreed  of  a  covenant  by  a  husband  that  his  wife  should  levy  a  fine  or 
execute  any  lawful  conveyance  to  bar  her  right  in  his  estate  or  her  own  estate.  Owing 
to  changes  in  the  law  of  husband  and  wife,  this  discussion  has  only  an  historical  in 
terest,  and  is  therefore  omitted. 

(r)  Smith  v.  Fromont,  2  Swanst.  330. 

(s)  Jeston  V.  Key,  L.  E.  6  Ch,  610. 


§  736 — 738.]  SPECIFIC    performance.  311 

lands  by  the  feoffor;  and  afterwards,  by  the  voluntary  acts  of  the 
feoffor  and  those  claiming  under  him,  the  character  and  condition 
of  the  adjoining  land  had  been  so  greatly  altered,  that  the  contem- 
plated benefits  were  entirely  gone;  the  court  refused  to  interfere  to 
compel  a  specific  performance  by  injunction,  and  left  the  party  to  his 
remedy  at  law  on  the  covenant  (t).  But  in  a  subsequent  case,  where 
A.  purchased  a  piece  of  ground  in  the  centre  of  a  square  in  London, 
and  covenanted  not  to  use  it  otherwise  than  as  a  pleasure-ground,  an 
injunction  was  granted,  restraining  a  subsequent  purchaser  from  A. 
from  using  the  ground  in  violation  of  the  covenajtit  (u). 

§  737a..  With  the  growth  of  population,  the  law  relating  to 
restrictive  covenants  affecting  the  user  of  land  has  been  developed, 
and  the  learned  author's  statement  requires  to  be  supplemented. 
It  is  inexpedient  to  discuss  the  cases  at  length  in  a  book  primarily 
intended  for  the  use  of  students.  The  cases  range  themselves  con- 
veniently under  one  or  other  of  two  heads,  but  under  which  the 
particular  instance  is  to  be  classed  is  a  matter  of  great  difficulty, 
depending  as  it  does  upon  a  consideration  of  all  the  facts.  Land 
may  be  sold  upon  terms  which  make  the  restrictive  stipulations  a 
bargain  between  the  immediate  contracting  parties,  who  are  at  liberty 
to  vary  the  terms  of  the  contract  between  them  (x),  and  this  they 
may  do  either  in  express  terms  or  by  waiver  or  acquiescence  ■  in  a 
breach,  and  in  the  latter  case  the  waiver  or  acquiescence  will  generally 
be  limited  in  effect  to  the  particular  breach  (y).  And  the  benefit 
of  covenants  of  this  description  may  be  made  to  run  with  the  land  at 
law  and  in  equity  (z),  although  the  burden  can  only  be  made  to  run 
with  the  land  sold  in  equity  (zz).  On  the  other  hand,  there  may  be 
what  is  known  as  a  building  scheme  which  confers  a  right  upon  pur- 
chasers of  lots  to  sue  purchasers  of  other  lots  for  failure  to  observe 
restrictive  stipulations  relative  to  the  use  of  land  (a).  And  in  this 
case  the  common  vendor  cannot  dispense  with  the  conditions  or  refuse 
to  observe  them  (6). 

§  738.  Before  proceeding  to  the  remaining  head  of  specific  per- 
formance, that  of  contracts  respecting  real  estate,  which  will  occupy 
our  attention  to  a  far  greater  extent,  it  may  be  proper  to  mention, 
that  before  Lord  Somers's  time,  the  practice  used  to  be,  on  bills  for  a 
specific  performance,  to  send  the  party  to  law ;  and  if  he  recovered 
anything  by  way  of  damages,  the  Court  of  Chancery  then  entertained 

(t)  Duke  of  Bedford  v.  Trustees  of  the  British  Museum,  2  Myl.  &  K.  552. 

(u)  Tulk  V.  Moxhay,  13  Jur.  89,  2  Phil.  774. 

(x)  Renals  v.  Cowlishaw,  11  Ch.  D.  866;  Osborne  v.  Bradley,  [1903]  2  Ch.  446. 

(y)  Sayers  v.  Collyer,  28  Ch.  D.  103;  Knight  v.  Simmonds,  [1896]  2  Ch.  294, 

(«)  Rogers  v.  Hosegood,  [1900]  2  Ch.  388. 

(zz)  Haywood  v.  Brunswick  Permanent  Benefit  Building  Soc,  8  Q.  B.  T>.  403. 

(a)  Rowell  v.  Satchell,  [1903]  2  Ch.  212. 

(b)  Spicer  v.  Martin,  14  App.  Cas.  12 ;  In  re  Birmingham  and  District  Land  Go, 
V.  Allday,  [1893]  1  Ch.  342. 


312  EQUITY     JURISPRUDENCE.  [CH.    XVII. 

a  suit;  otherwise  the  bill  was  dismissed  (o).  And,  hence  the  opinion 
has  been  expressed,  that,  unless  damages  were  recoverable  at  law, 
no  suit  could  be  maintained  in  equity,  for  a  specific  performance. 
But  the  whole  class  of  cases  of  specific  performance  of  contracts 
respecting  real  estate,  where  the  contract  is  by  parol,  and  there  has 
been  a  part  performance,  or  where  the  t-erms  of  the  contract  have 
not  been  strictly  complied  with,  and  yet  equity  relieves  the  party, 
are  proofs  that  the  right  to  maintain  a  suit  in  equity,  to  compel  a 
specific  performance,  does  not,  and  cannot  properly  be  said  to  depend 
upon  the  party's  having  a  right  to  maintain  a  suit  at  law  for  damages. 
In  cases  of  specific  performance,  courts  of  equity  sometimes  follow 
the  law,  and  sometimes  go  far  beyond  the  law;  and  their  doctrines, 
if  not  wholly  independent  of  the  point,  whether  damages  would  be 
given  at  law,  are  not  in  general  dependent  upon  it.  Whoever  should 
assume  the  existence  of  a  right  to  damages  in  an  action  at  law,  as 
the  true  test  of  the  jurisdiction  in  equity,  would  find  himself  involved 
in  endless  perplexity;  for  sometimes  damages  were  formerly  recover- 
able at  law,  where  courts  of  equitj'  would  not  decree  a  specific  per- 
formance (d),  and,  on  the  other  hand,  damages  might  not  be  recover- 
able at  law,  and  yet  relief  would  be  granted  in  equity  (e).  Under 
the  present  practice,  where  a  party  fails  to  substantiate  his  claim 
to  specific  performance,  but  is  entitled  to  damages  as  the  appropriate 
rehef,  it  is  the  duty  of  the  court-  to  proceed  at  once  to  assess 
them  (/). 

§  742.  In  truth,  the  exercise  of  this  whole  branch  of  equity  juris- 
prudence, respecting  the  rescission  and  specific  performance  of 
contracts,  is  not  a  matter  of  right  in  either  party;  but  it  is  a  matter 
of  discretion  in  the  court  {g);  not,  indeed,  of  arbitrary  or  capricious 
discretion,  dependent  upon  the  mere  pleasure  of  the  judge,  but  of 
4  that  sound  and  reasonable  discretion  which  governs  itself  as  far  as  it 

may,  by  general  rules  and  principles;  but  at  the  same  time,  which 
withholds  or  grants  relief  according  to  the  circumstances  of  each 
particular  case,  when  these  rules  and  principles  will  not  furnish  any 
exact  measure  of  justice  between  the  parties  (h).  On  this  account  it 
is  not  possible  to  lay  down  any  rules  and  principles,  which  are  of 
absolute  obligation  and  authority  in  all  cases;  and,  therefore,  it 
would  be  a  waste  of  time  to  attempt  to  limit  the  principles,  or  the 
exceptions,  which  the  complicated  transactions  of  the  parties,  and  the 
ever-changing  habits  of  society,   may,   at  different  times,   and  under 

(c)  Dodsley  v.  Kinnersley,  Ambler  406. 

(d)  Shrewsbury  and  Birmingham  Ry.  v.  L.  ,(■  N.  W.  Ry.^  17  Q.  B.  652;  in  equity 
6  H.  L.  C.  113. 

(e)  Lester  v.  Foxcroft,  Colles  P.  C.  108;  Coles  v.  Pilkington,  L.  E.  19  Eq.  174. 
(/)  Tamplin  v.  James,  15  Ch.  D.  215;  Olley  v.  Fisher.  34  Ch.  D.  367. 

ig)  Clowes  v.  Higginson,  1  Ves.  &  B.  527;  Scott  v.  Alvarez,  [1895]  2  Ch.  603. 
(h)  Hall  V.  Warren,  9  Ves.  605;  Revell  v.  Hussey,  2  Ball.  &  B.  280;  Haywood  J 
Cope,  25  Beav.  140;  Smith  v.  Colbourns,  [1914]  2  Ch.  533. 


§  742 — 746.]  SPECIFIC   performance.  313 

different  circumstances,  require  the  coui't  to  recognize  or  consider. 
The  most  that  can  be  done  is,  to  bring  under  review  some  of  the 
leading  principles  and  exceptions  which  the  past  times  have  furnished, 
as  guides  to  direct  and  aid  our  future  inquiries. 

§  743.  Let  us  now,  in  the  next  place,  proceed  to  the  consideration 
of  the  remaining  and  far  the  most  numerous  class  of  cases,  in  which 
courts  of  equity  are  called  upon  to  decree  a  specific  performance  of 
contracts;  that  is  to  say,  contracts  respecting  land.  These  are 
assigned  to  the  Chancery  Division  of  the  High  Court  by  section  34  of 
the  Judicature  Act,  1878  (86  &  37  Vict.  c.  66).  An  action  cannot  be 
maintained  for  the  specific  performance  of  a  contract  where  the  subject- 
matter  is  land  situate  in  a  country  not  subject  to  the  British  crown  (i). 
But  if  the  land  is  situate  in  a  country  so  subject  (be  it  even  a  colony 
or  dependency),  then  the  action  is  maintainable.  Accordingly,  it  was 
held  by  Lord  Hardwicke,  that  the  specific  performance  of  a  contract, 
respecting  the  boundaries  of  the  colonies  of  Pennsylvania  and  Mary- 
land, entered  into  by  the  proprietaries,  might  be  decreed  by  the  Court 
of  Chancery  in  England  (k).  The  like  doctrine  was  held  in  the  case  of 
an  agreement  respecting  the  Isle  of  Man,  where  a  specific  performance 
was  decreed  by  the  Court  of  Chancery  in  England,  although  the  isle 
was  without  the  realm  (i).  In  like  manner,  in  a  contract  respecting 
lands  in  Ireland,  a  specific  performance  has  been  decreed  (m). 

§  744.  The  incapacity  to  enforce  the  decree  in  rem  constitutes  no 
objection  to  the  right  to  entertain  such  a  suit  (n).  Where,  indeed,  the 
lands  lie  within  the  reach  of  the  process  of  the  court.,  courts  of 
equity  will  not  exclusively  rely  on  the  proceedings  in  personam; 
but  will  put  the  successful  party  in  possession  of  the  lands,  if 
the  other  party  remains  obstinate,  and  refuses  to  comply  with  the 
decree  (o). 

§  745.  But  to  return  to  the  class  of  cases  where  a  specific  per- 
formance is  sought  on  contracts  respecting  land,  situate  in  the 
country  where  the  suit  is  brought.  This  class  may  be  subdivided 
into  two  heads.  (1)  Where  relief  is  sought  upon  parol  contracts 
within  the  Statute  of  Frauds  (29  Car.  2,  ch.  3) ;  and  (2)  where  it  is 
sought  under  written  contracts,  not  falling  within  the  scope  of  that 
statute. 

§  746.  It  has  been  already  suggested,  that  courts  of  equity  are 
in  the  habit  of  interposing  to  grant  relief  in  cases  of  contracts 
respecting  real  property,  to  a  far  greater  ext«nt  than  in  cases  respecting 


(8)  In  re  Hawthorn,  Graham  v.  Massey,  23  Ch.  D.  743. 
(k)  Penn  v.  Lord  Baltimore,  1  Ves.  Sen.  444. 
(/)  Earl  of  Athol  v.  Earl  of  Derby,  1  Ch.  Gas.  221. 
(m)  Archer  v.  Preston,  cited  1  Vern.  77 ;  s.c.  1  Bq.  Abr.  133. 
(n)  Earl  of  Arglasse  v.  Muschamp,  1  Vern.  135. 

(o)  Penn  v.  Lord  Baltimore,  1  Ves.  Sen.  454;  Roberdeau  v.  Rous,  1  Atk.  643; 
Stribley  v.  Hawkie,  3  ^tk.  275. 


314  EQUITY     JURISPHUDENCE.  [CH.    XVII. 

personal  property;  not,  indeed,  upon  the  ground  of  any  distinction 
founded  upon  the  mere  nature  of  the  property,  as  real  or  as  personal; 
but,  at  the  same  time,  not  wholly  excluding  the  consideration  of  such 
a  distinction.  In  regard  to  contracts  respecting  personal  estate,  it 
is  (as  has  already  been  intimated)  generally  true  that  no  particular 
or  peculiar  value  is  attached  to  any  one  thing  over  another  of  the 
same  kind ;  and  that  a  compensation  in  damages  meets  the  full  merits, 
as  well  as  the  full  objects,  of  the  contracts.  If  a  man  contracts  for 
the  purchase  of  a  hundred  bales  of  cotton,  or  bags  of  sugar  or  of 
cofiee,  of  a  particular  description  or  quality,  if  the  contract  is  not 
specifically  performed,  he  may,  generally,  with  a  sum  equal  to  the 
market-price,  purchase  other  goods  of  the  same  kind  of  a  like 
description  and  quality ;  and  thus  completely  obtain  his  object,  and 
indemnify  himself  against  loss  (p).  But,  in  contracts  respecting  a 
specific  messuage  or  parcel  of  land,  the  same  considerations  do  not 
ordinarily  apply.  The  locality,  character,  vicinage,  soil,  easements  or 
accommodations  of  the  land  generally,  may  give  it  a  peculiar  and 
special  value  in  the  eyes  of  the  purchaser ;  so  that  it  cannot  be  replaced 
by  other  land  of  the  same  precise  value  but  not  having  the  same 
precise  local  conveniences  or  accommodations  (q) ;  and,  therefore, 
a  compensation  in  damages  would  not  be  adequate  relief.  It  would 
not  attain  the  object  desired ;  and  it  would  generally  frustrate  the 
plans  of  the  purchaser.  And  hence  it  is,  that  the  jurisdiction  of  courts 
of  equity  to  decree  specific  performance,  is,  in  cases  of  contracts 
respecting  land,  imiversally  maintained;  whereas,  in  cases  respecting 
chattels,  it  is  limited  to  special  circumstances. 

§  747.  Courts  of  equity,  too,  in  cases  of  contracts  respecting  real 
property,  have  been  in  the  habit  of  granting  this  relief,  not  only  to 
a  greater  extent,  but  also  under  circumstances  iai^  more,  various  and 
more  indulgent  than  in  cases  of  contracts  respecting  chattels.  For 
they  do  not  confine  themselves  to  cases  of  a  strict  legal  title  to  relief. 
Another  principle,  equally  beneficial,  is  well  known  and  established, 
that  courts  of  equity  will  not  permit  the  forms  of  law  to  be  made  the 
instruments  of  injustice;  and  they  will,  therefore,  interpose  against 
parties  attempting  to  avail  themselves  of  the  rigid  rules  of  law  for 
unconscientious  purposes.  When,  therefore,  advantage  is  taken  of  a 
circumstance  that  does  not  admit  of  a  strict  performance  in  the 
contract,  if  the  failure  is  not  in  a  matter  of  substance,  courts  of  equity 
will  interfere  (r).  Thus,  they  are  in  the  habit  of  relieving  in  contracts 
for  real  property,  where  the  party,  from  his  own  inadvertence  or 
neglect,  has  suffered  the  proper  time  to  elapse  for  the  punctilious 
performance  of  his  contract,  and  from  that  and  other  circumstances, 

(/))  Ante,  §§  716,  717,  718  to  724. 

(q)  Adderley  v.  Dixon,  1  Sim.  &  Stu.  607;  Peers  v.  Lambert,  7  Beav.  546. 
(r)  Halsey  v.   Grant,  13  Ves.  73;  Hill    v.    Buckley,    17    Ves.    394;    Wilson    v. 
Williams,  3  Jur.  N.  S.  810;  Rudd  v.  Lascelles,  [1900]  1  Ch.  81*. 


§  747 — 750.]  SPECIFIC    performance.  315 

he  could  not  maintain  an  action  to  recover  damages  at  law  until 
the  equitable  rule  was  made  generally  applicable  by  section  25,  sub- 
section 7  of  the  Judicature  Act,  1873  (37  &  38  Vict.  c.  66)  (s).  Even 
where  nothing  exists  to  prevent  the  parties  suing  at  law,  so  many 
circumstances  are  necessary  to  enable  him  to  recover,  at  law,  that 
the  mere  formal  proofs  alone  render  it  very  inconvenient  and 
hazardous  so  to  proceed,  even  if  the  legal  remedy  would  (as  in 
many  cases  it  would  not)  be  adequate  to  the  demands  of  substantial 
justice. 

§  748.  On  these  accounts  (as  has  been  well  remarked),  courts  of 
equity  have  enforced  contracts  of  this  sort,  where  no  action  for 
damages  could  be  maintained;  for,  at  law,  the  party  plaintiff  must 
have  strictly  performed  his  part;  and  the  inconvenience  of  insisting 
upon  that  in  all  cases  is  sufficient  to  require  the  interference  of 
courts  of  equity.  They  dispense  with  that  which  would  make  a 
compliance  with  what  the  law  requires  oppressive;  and,  in  various 
cases  of  such  contracts,  they  are  in  the  constant  habit  of  relieving  a 
party  who  has  acted  fairly,  although  negligently  (t). 

§  749.  On  the  other  hand,  as  the  interference  of  courts  of  equity 
is  discretionary,  they  will  not  enforce  a  specific  performance  of  such 
contracts  at  the  instance  of  the  vendor,  where  his  title  is  involved  in 
difficulties  which  cannot  be  removed  readily,  although,  perhaps,  at 
law,  an  action  might  be  maintainable  against  the  defendant  for 
damages  for  his  not  completing  his  purchase  (u). 

§  750.  Indeed,  the  proposition  may  be  more  generally  stated,  that 
courts  of  equity  will  not  interfere  to  decree  a  specific  performance, 
except  in  cases  where  it  would  be  strictly  equitable  to  make  such 
a  decree  (x).  There  is  no  pretence  to  say,  that  it  is  the  doctrine 
of  courts  of  equity  to  carry  into  specific  execution  every  contract  in 
all  cases,  where  that  is  found  to  be  the  legal  intention  and  effect 
of  the  contract  between  the  parties.  If,  in  any  case,  the  parties 
have  so  dealt  with  each  other,  in  relation  to  the  subject-matter  of  a 
contract,  that  the  object  of  one  party  is  defeated,  while  the  other 
party  is  at  liberty  t-o  do  as  he  pleases,  in  relation  to  that  very  subject; 
or  if,  in  fact,  the  character  and  condition  of  the  property,  to  which 
the  contract  is  attached,  have  been  so  altered,  that  the  terms  and 
restrictions  of  it  are  no  longer  applicable  to  the  existing  state  of 
things;  in  such  eases  courts  of  equity  will  noti  grant  any  relief,  but 
will  leave  the  parties  to  their  remedy  at  law  (y). 


(s)  Seton  V.  Slade,  7  Ves.  265;  Stickney  v.  Keeble,  [1915]  A.  C.  386. 

(t)  Lord  Bedesdale,  in  Lennon  v.  Napper,  2  Sch.  &  Lefr.  684. 

(«)  Lechmere  v.  Brazier,  2  J.  &  W.  287;  Fraser  v.  Wood,  8  Beav.  339;  Nokes  v. 
Lord  Kilmorey,  1  De  G.  &  Sm.  444. 

(x)  Webster  v.  Cecil,  30  Beav.  62;  Higgins  v.  Samels,  2  J.  &  H.  460;  Earl  of 
Durham  v.  Lsgard,  34  Beav.  611;  Rudd  v.  Lascelles,  [1900]  1  Ch.  815. 

(y)  Duke  of  Bedford  v.  Trustees  of  the  British  Museum,  2  Myl.  &  K.  552. 


316  EQUITY     JURISPRUDENCE.  [CH.    XVII. 

§  751.  Where,  indeed,  a  contract  respecting  real  property  is  in  its 
nature  and  circumstances  unobjectionable,  it  is  as  much  a  matter  of 
course  for  courts  of  equity  to  decree  a  specific  performance  of  it,  as  it 
is  for  a  court  of  law  to  give  damages  for  the  breach  of  it  (a).  And 
generally,  it  may  be  stated,  that  courts  of  equity  will  decree  a  specific 
performance,  where  the  contract  is  in  writing,  and  is  certain,  and  is 
fair  in  all  its  parts,  and  is  for  an  adequate  consideration,  and  is 
capable  of  being  performed  (a),  but  not  otherwise.  The  form  of  the 
instrument,  by  which  the  contract  appears,  is  wholly  unimportant. 
Thus,  if  the  contract  appears  only  in  the  condition  of  a  bond  secured 
by  a  penalty,  the  court  will  act  upon  it  as  an  agreement,  and  will  not 
suffer  the  party  to  escape  from  a  specific  performance  by  offering  to 
pay  the  penalty  (b).  On  the  other  hand,  if  courts  of  equity  refuse  to 
interfere,  they  inflict  no  injury  upon  the  plaintiff;  for  no  decision  is 
made,  which  affects  his  right  to  proceed  at  law  for  any  redress  by 
way  of  damages  to  which  he  may  be  entitled.  The  whole  effect  of  the 
dismissal  of  his  suit  is,  that  he  is  barred  of  any  equitable  relief. 

§  751a.  Courts  of  equity  will  also,  in  allowing  or  denying  a  specific 
performance,  look  not  only  to  the  nature  of  the  transaction,  but  also 
to  the  character  of  the  parties  who  have  entered  into  the  contract. 
Thus,  if  the  purchase  be  made  by  trustees  for  the  benefit  of  a  cestui 
que  trust,  and  there  be  a  substantial  misdescription  of  the  premises, 
courts  of  equity  will  not  enforce  against  them  a  specific  performance 
with  compensation,  as  being  prejudicial  to  the  cestui  que  trust  and 
incapable  of  being  ascertained  (c). 

§  752.  With  these  explanations  in  view,  let  us  now  proceed  to 
examine,  in  the  first  place,  in  what  cases  a  specific  performance  will 
be  decreed  of  contracts  respecting  lands,  where  they  are  within  the 
provisions  of  the  Statut-e  of  Frauds  (29  Car.  II.  c.  3).  That  statute 
declares  that  ' '  All  interests  in  lands,  tenements,  and  hereditaments, 
except  leases  for  three  years,  not  put  in  writing  and  signed  by  the 
parties  or  their  agents  authorized  by  writing,  shall  not  have,  nor  be 
deemed  in  law  or  equity  to  have,  any  greater  force  or  effect  than 
leases  or  estates  at  will."  It  further  enacts  that,  "No  action  shall 
be  brought,  whereby  to  charge  any  person  upon  any  agreement  made 
upon  consideration  of  marriage,  or  upon  any  contract  or  sale  of  lands, 
tenements,  or  hereditaments,  or  any  interest  in  or  concerning  the 
same,  or  upon  any  agreement,  that  is  not  to  be  performed  within  the 
space  of  one  year  from  the  making  thereof,  unless  the  agreement, 
upon  which  such  action  shall  be  brought,  or  some  memorandum  or 
note  thereof,  shall  be  in  writing,  and  signed  by  the  party  or  his  lawful 

(z)  Hall  V.  Warren,  9  Ves.  608;  Eastern  Coimties  By.  v.  Hawkes,  5  H.  L.  C.  331. 

(a)  Denton  v.  Stewart,  1  Cox  258;  Greenaway  v.  Adams,  12  Ves.  395,  400. 

(b)  Logan  v.  Weinholt,  1  CI.  &  F.  611;  French  v.  Macale,  2  Dru.  &  War.  269. 

(c)  Wedgwood  v.  Adams,  6  Beav.  600. 


§    751 — 754.]  SPECIFIC     PERFORMANCE.  317 

agent."  By  the  same  statute,  declarations  of  trust  of  land  (d),  created 
by  the  parties,  cannot  be  enforced  unless  manifested  and  proved  by 
writing;  but  trusts  resulting  by  implication  of  law  are  to  remain  as 
they  stood  before  the  passing  of  the  Act. 

§  753.  The  objects  of  this  statute  are  such,  as  the  very  title 
indicates,  to  prevent  the  fraudulent  setting  up  of  pretended  agree- 
ments, and  then  supporting  them  by  perjury.  But,  besides  these 
direct  objects,  there  is  a  manifest  policy  in  requiring  all  contracts  of 
an  important  nature  to  be  reduced  to  writing,  since  otherwise,  from 
the  imperfection  of  memory,  and  the  honest  mistakes  of  witnesses,  it 
must  often  happen,  either  that  the  specific  contract  is  incapable  of 
exact  proof,  or  that  it  is  unintentionally  varied  from  its  precise  original 
terms.  So  sensible  were  courts  of  equity  of  these  mischiefs,  that  they 
constantly  refused,  before  the  statute,  to  decree  a  specific  performance 
of  parol  contracts,  unless  confessed  by  the  party  in  his  answer,  or 
unless  they  were  in  part  performed  (e). 

§  754.  It  is  obvious  that  courts  of  equity  are  bound,  as  much  as 
courts  of  law,  by  the  provisions  of  this  statute;  and,  therefore,  they 

((f)  McFadden  v.  Jenkyns,  1  Ph.  153;  Cochrane  v.  Moore,  25  Q.  B.  D.  57. 
(e)  Lord  St.  Leonards,  in  his  learned  treatise  on  Vendors  and  Purchasers,  ch.  4, 
§  2,  pp.  107,  108  (7th  edit.),  has  reviewed  the  cases  and  stated  the  result.     "  There 
are  four  cases  in  Tothill,  which  arose  previously  to  the  Statute  of  Frauds,  and  appear 
to  be  applicable  to  the  point  under  consideration ;  for  equity,  even  before  the  Statute 
of  Frauds,  would  not  execute  a  mere  parol  agreement,  not  in  part  performed.     In  the 
first  case,  Williams  v.  Neville,  Toth.  135,  which  was  heard  in  the  38th  of  Eliz.,  relief 
was  denied,  '  because  it  was  but  a  preparation  for  an  action  upon  the  case.'     In  the 
two  next  cases  (Feme  v.  Bullosk,  Toth.  206,  208;  Clark  v.  Hackwell,  id.),  which  came 
on  in  the  9th  of  Jac.  1,  parol  agreements  were  enforced,  apparently  on  account  of  the 
payment  of  a  very  trifling  part  of  the  purchase-money ;  but  the  particular  circumstances 
of  these  cases  do  not  appear.     The  last  case  reported  in  Tothill   (Miller  v.  Blandist, 
Toth.  85)  was  decided  in  the  30th  of  Jac.  1,  and  the  facts  are  distinctly  stated?    The 
bill  was  to  be  relieved  concerning  a  promise  to  assure  land  of  inheritance,  of  which 
there  had  not  been  any  execution,  but  only  55s.  paid  in  hand,  and  the  bill  was  dis- 
missed.    This  point  received  a  similar  determination  in  the  next  case  on  the  subject 
before  the  statute,  which  is  reported  in  1  Ch.,  and  was  determined  in  the  15th  of 
Car.  2.     Simmons  v.  Cornelius,  1  Ch.  128.     So  the  same  doctrine  was  adhered  to  in 
a  case  which  occurred  three  years  afterwards,  and  is  reported  in  Freeman,  Anon., 
2  Freem.  128;  for,  although  a  parol  agreement  for  a  house,  with  20s.  paid,  was  decreed 
without  further  execution  proved,  yet  it  appears  by  the  judgment,  that  the  relief  would 
not  have  been  granted  if  the  defendant,  the  vendor,  had  demurred  to  the  bill,  which  he 
had  neglected  to  do,  but  had  proceeded  to  proof.    The  last  case  I  have  met  with  previ- 
ously to  the  statute,  was  decided  in  the  2lBt  of  Car.  2,  Voll  v.  Smith,  3  Ch.  16,  and 
there  a  parol  agreement,  upon  which  only  203.  were  paid,  was  carried  into  specific 
execution.     This  case  probably  turned,  like  the  one  immediately  preceding  it,  on  the 
neglect  of  the  defendants  to  demur  to  the  bill.    It  must  be  admitted  that  the  foregoing 
decisions  are  not  easily  reconcilable ;  yet,  the  result  of  them  clearly  is,  that  payment 
of  a  trifling  part  of  the  purchase-money  was  not  ■-■  part  performance  of  a  parol  agree- 
ment.    Whether  payment  of  a  considerable  sum  would  have  availed  a  purchaser  does 
not  appear.    In  Toth.  67,  a  case  is  thus  stated  :  '  Moyl  v.  Home,  by  reason  £200  was 
deposited  towards  payment,  decreed.'     This  case  may,  perhaps,  be  deemed  an  autho- 
rity, that,  prior  to  the  statute,  the  payment  of  a  substantial  part  of  the  purchase-money 
would  have  enabled  equity  to  specifically  perform  -  parol  agreement ;  but  it  certainly 
is  too  vague  to  be  relied  on."    Ibid.,  p.  120. 


318  EQUITY     JURISPRUDENCE.  [CH.    XVII. 

are  not  at  liberty  to  disregard  them  (/).  That  they  do,  however, 
interfere  in  some  cases  within  the  reach  of  the  statute,  is  equally 
certain.  But  they  do  so,  not  upon  any  notion  of  any  right  to  dispense 
with  it,  but  for  the  purpose  of  administering  equities  subservient  to  its 
true  objects,  or  collateral  to  it,  and  independent  of  it  (g). 

§  755.  In  the  first  place,  then,  courts  of  equity  will  enforce  a 
specific  performance  of  a  contract  within  the  statute,  not  in  writing, 
where  it  is  fully  set  forth  in  the  statement  of  claim  and  admitted  in 
the  defence  of  the  defendant  (h).  The  statute  is  obviously  designed 
to  guard  against  fraud  and  perjury;  and  where  there  is  no  conflict  of 
evidence,  the  ease  then  is  taken  entirely  out  of  the  mischief  intended 
to  be  guarded  against  by  the  statute  (i).  Another  reason  was  suggested 
by  the  learned  author;  and  that  was  that  the  agreement,  although 
originally  by  parol,  became  thereby  evidenced  by  writing  under  the 
signature  of  the  party  which  is  a  complete  compliance  with  the  terms 
of  the  statute.  This  reason  is  clearly  inadmissible,  for  although  the 
statutory  requirements  are  satisfied  by  a  writing  coming  into  existence 
after  the  contract  is  entered  into  (k),  the  writing  must  have  been  in 
existence  before  action  brought  (I). 

§  756.  But  where  the  defence  admits  the  parol  agreement,  and 
insists  upon  the  Statute  of  Frauds  as  a  defence,  the  question  arises 
whether  courts  of  equity  will  allow  the  statut-e,  under  such  circum- 
stances, as  a  bar;  or  whether  they  will,  notwithstanding  the  statute, 
decree  a  specific  performance  upon  the  ground  of  the  confession. 
Upon  this  question,  there  has  been  no  small  conflict  of  judicial 
opinion.  Lord  Macclesfield  expressly  decreed  a  specific  performance 
in  such  a  case  (m). 

§  757.  But  this  opinion  must  now  be  deemed  to  be  entirely  over- 
ruled, and  the  doctrine  firmly  established,  that  even  where  the  defence 
admits  the  parol  agreement,  if  it  insists,  as  it  must  now  do  (n),  by 
way  of  defence,  upon  the  protection  of  the  statute,  the  defence  must 
prevail  as  a  competent  bar  (o).  This  doctrine  seems  conformable  to 
the  true  intent  and  objects  of  the  statute,  which  does  not  affect  the 

(/)  Emmet  v.  Dewhurst,  3  Mac.  &  G.  587 ;  Caton  v.  Caton,  L.  E.  1  Ch.  137 ;  2 
H.  L.  127 ;  May  v.  Piatt,  [1900]  1  Ch.  616. 

ig)  Mallet  v.  Halfpenny,  cited  Prec.  Ch.  at  p.  404;  Middleton  v.  Middleton,  1 
J.  &  W.  94;  Wood  V.  Midgley,  5  De  G.  M.  &  G.  41. 

(h)  Att.-Gen.  v.  Sitwell,  1  Y.  &  C.  Ex.  at  p.  583;  Ex  parte  National  Provincial  Bk. 
of  England;  in  re  Boulter,  4  Ch.  X>.  241. 

(i)  Bacon,  V.-C,  Ex  parte  National  Provincial  Bk.  of  England,  in  re  Boulter, 
4  Ch.  D.  241. 

(k)  In  re  Holland,  Gregg  v.  Holland,  [1902]  2  Ch.  360. 

U)  Lucas  V.  Dixon,  22  Q.  B.  D.  357. 

(m)  Child  V.  Godolphin,  1  Dick.  39;"s.c.  cited  2  Bro.  C.  C.  566;  Child  v.  Comber, 
3  Swanst.  423,  note. 

(n)  E.  S.  C.  1883,  Order  XIX.,  rule  15;  Catling  v.  King,  5  Ch.  D.  660. 

(o)  Blagden  v.  Bradbear,  12  Ves.  466. 


§  755 — 760.]  SPECIFIC    performance.  319 

validity  of  the  contract,  but  merely  the  method  of  proof  (p),  and 
by  insisting  on  the  statute,  the  defendant  merely  exercises  his  right 
to  put  the  plaintiff  to  a  strict  proof  of  his  case. 

§  759.  In  the  next  place,  courts  of  equity  will  enforce  a  specific 
performance  of  a  contract  within  the  statute,  provided  it  affects 
land  (g),  where  the  parol  agreement  has  been  partly  carried  into 
execution.  The  distinct  ground,  upon  which  courts  of  equity  interfere 
in  cases  of  this  sort,  is,  as  before  observed,  that  the  statute  does 
not  affect  the  validity  of  the  contract.  It  would,  therefore,  have 
entitled  a  defendant  to  an  action  for  trespass  quare  clausum  fregit, 
to  prove  a  verbal  agreement  for  a  sale  of  land  under  a  plea  of  leave 
or  licence.  Where  the  act  of  the  party  defendant  would  have  been 
a  trespass  but  for  the  verbal  agreement,  then  the  agreement  may  be 
sued  upon  in  equity  as  a  substantive  cause  of  action  (r). 

§  760.  But  the  more  difficult  question  is  to  ascertain  what,  in  the 
sense  of  courts  of  equity,  is  to  be  deemed  a  part  performance,  so  as  to 
extract  the  case  from  the  reach  of  the  statute.  It  seems  formerly  to 
have  been  thought  that  a  deposit,  or  security,  or  payment  of  the 
purchase-money,  or  a  part  of  it,  or  at  least  of  a  considerable  part  of 
it,  was  such  a  part  performance  as  took  the  case  out  of  the  statute. 
But  that  doctrine  was  open  to  much  controversy,  and  is  now  finally 
overthrown  (s).  Indeed,  the  distinction  taken  in  some  of  the  cases, 
between  the  payment  of  a  small  part  and  the  payment  of  a  consider- 
able part  of  the  purchase-money  seems  quite  too  refined  and  subtle ; 
for,  independently  of  the  difficulty  of  saying  what  shall  be  deemed 
a  small,  and  what  a  considerable,  part  of  the  purchase-money,  each 
must,  upon  principle,  stand  upon  the  same  reason;  namely,  that  it 
is  a  part  performance  in  both  cases,  or  not  in  either.  One  ground, 
why  part  payment  is  not  now  deemed  a  part  performance,  sufficient 
to  take  a  case  out  of  the  statute,  is,  that  the  money  can  be  recovered 
back  again  at  law  (t),  and,  therefore,  the  case  admits  of  full  and 
direct  compensation.  This  ground  is  not,  however,  quit«  satisfactory; 
for  the  party  may  become  insolvent  before  the  judgment  at  law  can 
be  executed.  But  the  purchaser  is  also  entitled  to  an  equitable  lien 
upon  the  land  for  the  money  paid  by  him  (m).  Another  ground  has 
been  stated.     It  is,  that  the  statute  has  said,  in  another  clause  (that 

(p)  See  Buckmaster  v.  Harrop,  7  Ves.  346;  Whitbread  v.  Brockhurst,  1  Bro.  C.  C. 
417;  s.c.  2  Ves.  &  B.  153,  note;  Morphett  v.  Jones,  1  Swanst.  181 ;  GUnan  v.  Cooke,  1 
Sch.  &  Lefr.  41;  Mr.  Eaithby's  note  to  Hollis  v.  Edwards,  1  Yarn.  159;  Leroux  v. 
Brown,  12  C.  B.  801. 

(g)  Britain  v.  Rossiter,  11  Q.  B.  D.  123;  Maddison  v.  Alderson,  8  App.  Cas.  467. 

(r)  Wilson  v.  West  Hartlepool  By.,  2  De  G.  J.  &  S.  475;  Mills  v.  Haywood, 
6  Ch.  D.  196 ;  Dickinson  v.  Barrow,  [1904]  2  Ch.  339. 

(s)  Clinan  v.  Cooke,  1  Sch.  &  Lefr.  22;  Caddick  v.  Skidmore,  2  De  G.  &  J.  62. 

(tj   Wilde  v.  Fort,  4  Taunt.  334. 

(u)  Rose  V.  Watson,  10  H.  L.  C.  672;  Whitbread  &  Co.  v.  Watt,  [1902]  1  Ch.  835. 


320  EQUITY     JURISPRUDENCE.  [CH.    XVII. 

wbich  respects  contracts  for  goods),  that  part  payment,  by  way  of 
earnest,  shall  operate  as  a  part-  performance.  And  hence,  the  courts 
have  considered  this  clause  as  excluding  agreements  for  lands,  because 
it  is  to  be  inferred,  that,  when  the  legislature  said  it  should  bind  in 
the  case  of  goods,  and  were  silent  as  to  the  case  of  lands,  they  meant 
that  it  should  not  bind  in  the  case  of  lands  (x). 

§  761.  But  a  more  general  ground,  and  one  which  has  met  with 
some  favour,  is,  that  nothing  is  to  be  considered  as  a  part  performance 
which  does  not  put  the  party  into  a  situation  which  is  a  fraud  upon 
him,  unless  the  agreement  is  fully  performed  (y).  This  is  hardly 
accurate,  although  the  converse  holds  good,  namely,  that  where 
it  would  be  a  fraud  upon  the  party  in  the  nature  of  a  surprise,  not  to 
give  effect  to  the  verbal  agreement,  the  statute  will  be  displaced. 
Thus,  for  instance,  if  upon  a  parol  agreement  a  man  is  admitted 
into  possession,  he  could  be  made  a  trespasser,  unless  allowed  to  set 
up  a  parol  agreement  for  the  purpose  of  defending  himself  against  a 
charge  as  a  trespasser,  and  against  an  action  to  account  for  the  profits 
in  such  a  case,  the  evidence  of  a  parol  agreement  would  seem  to  be 
admissible  for  his  protection;  and  if  admissible  for  such  a  purpose, 
there  seems  no  reason  why  it  should  not  be  admissible  throughout  (2). 
A  ease  still  more  cogent  might  be  put,  where  a  vendee,  upon  a  parol 
agreement  for  a  sale  of  land,  should  proceed  to  buUd  a  house  on  the 
land,  in  the  confidence  of  a  due  completion  of  the  contract.  In  such 
a  case,  there  would  be  a  manifest  fraud  upon  the  party,  in  permitting 
the  vendor  to  escape  from  a  due  and  strict  fulfilment  of  such  agree- 
ment (a).  Such  a  case  is  certainly  distinguishable  from  that  of  part 
payment  of  the  purchase-money,  for  the  latter  may  be  repaid,  and  the 
parties  are  then  just  where  they  were  before,  especially  if  the  money 
is  repaid  with  interest.  A  man  who  has  parted  with  his  money  is 
not  in  the  situation  of  a  man  against  whom  an  action  may  be  brought, 
and  who  may  otherwise  suffer  an  irreparable  injury  (b). 

§  762.  In  order  to  make  the  acts  such  as  a  court  of  equity  will 
deem  part  performance  of  an  agreement  within  the  statute,  it  is 
essential  that  they  should  clearly  appear  to  be  done  solely  with  a 
view  to  the  agreement  being  performed.  For,  if  they  are  acts  which 
might  have  been  done  with  other  views,  they  will  not  take  the  case 
out  of  the  statute,  since  they  cannot  properly  be  said  to  be  done  by 
way  of  part  performance  of  the  agreement  (c).     On  this  account,  acts,. 

(x)  Clinan  v.  Cooke,  1  Sch.  &  Lefr.  22. 

(y)  Clinan  v.  Cooke,  1  Sch.  &  Lefr.  22. 

(z)  Pain  V.  Coombs,  1  De  G.  &  J.  34;  Wilson  v.  West  Hartlepool  Ry.,  4  De  ft. 
J.  &  S.  475;  Mills  v.  Hayward,  6  Ch.  D.  196.  See  Dickinson  v.  Barrow,  [1904]  2' 
Ch.  339. 

(a)  Lester  v.  Foxcroft,  Colles  P.  C.  108;  Savage  v.  Foster,  9  Mod.  35;  Coles  v. 
Pilkington,  L.  E.  19  Eq.  174. 

(b)  Wilde  v.  Fort,  4  Taunt.  334 ;  Sutherland  v.  Briggs,  1  Hare  26. 

(c)  Frame  v.  Dawson,  14  Ves.  386;  Ex  parte  Hooper,  19  Ves.  479;  Morphett  v. 


§  761 — 763a..]  specific  performance.  321 

merely  introductory  or  ancillary  to  an  agreement,  are  not  considered 
as  a  part  performance  thereof,  although  they  should  be  attended  with 
expense.  Therefore,  delivering  an  abstract  of  title,  giving  directions 
for  conveyances,  going  to  view  the  estate,  fixing  upon  an  appraiser 
to  value  stock,  making  valuations,  admeasuring  the  lands,  registering 
conveyances,  and  acts  of  the  like  nature,  are  not  sufficient  to  take  a 
case  out  of  the  statute  (d).  They  are  all  preliminary  proceedings, 
and  are,  besides,  of  an  equivocal  character,  and  capable  of  a  double 
interpretation ;  whereas  acts,  to  be  deemed  a  part  performance,  should 
be  so  clear,  certain,  and  definite  in  their  object  and  design,  as  to  refer 
exclusively  to  a  complete  and  perfect  agreement,  of  which  they  are  a 
part  execution. 

§  763.  In  like  manner,  the  mere  possession  of  the  land  contracted 
for  will  not  be  deemed  a  part  performance,  if  it  be  obtained  wrong- 
fully by  the  vendee,  or  if  it  be  wholly  independent  of  the  contract. 
Thus,  if  the  vendee  enter  into  possession,  not  under  the  contract,  but 
in  violation  of  it,  as  a  trespasser,  the  case  is  not  taken  out  of  the 
statute.  So,  if  the  vendee  be  a  tenant  in  possession  under  the 
vendor;  for  his  possession  is  properly  referable  to  his  tenancy,  and 
not  to  the  contract  (e).  But  if  the  possession  be  delivered  and  obtained 
solely  under  the  contract;  or  if,  in  case  of  tenancy,  the  nature  of  the 
holding  be  different  from  the  original  tenancy,  as  by  the  payment  of 
a  higher  rent,  or  by  other  unequivocal  circumstances,  referable  solely 
and  exclusively  to  the  contract;  there,  the  possession  may  take  the 
case  out  of  the  statute.  Especially  will  it  be  held  to  do  so,  where 
the  party  let  into  possession  has  expended  money  in  building  or 
repairs,  or  other  improvements ;  for  under  such  circumstances,  if  the 
parol  contract  were  to  be  deemed  a  nullity,  he  would  be  liable  to  be 
treated  as  a  trespasser;  and  the  expenditure  would  not'  only  operate 
to  his  prejudice,  but  be  the  direct  result  of  a  fraud  practised  upon 
him  (/). 

§  763a.  It  seems  to  be  now  settled  that  possession,  taken  pre- 
viously to,  but  continued  after,  a  parol  agreement,  may  be  a  sufficient 
act  of  part  performance  to  exclude  a  defence  founded  on  the  Statute 
of  Frauds,  if  the  entry  being  tortious  originally,  the  continuance  in 
possession  has  been  acquiesced  in  by  the  defendant,  or  if  the  possession 
can  otherwise  be  referred  to  the  (contract  alleged  (g). 

Jones,  1  Swanst.  181;  Reynolds  v.  Waring,  Younge,  346;  Maddisonv.  Alderson,  8 
App.  Cas.  467. 

(d)  Pembroke  v.  Thorpe,  3  Swanst.  437  n. ;  Clarke  v.  Wright,  1  Atk.  12;  Whaley 
V.  Bagenal,  1  Bro.  P.  C.  345;  Frame  v.  Dawson,  14  Ves.  386. 

(e)  Cole  V.  White,  cited  1  Bro.  C.  C.  409;  Frame  v.  Dawson,  14  Ves.  386;  Glinan 
V.  Cooke,  1  Sch.  &  L.  22;  Lindsay  v.  Lynch,  2  Sch.  &  Lefr.  1. 

(/)  Wills  V.  Stradling,  3  Ves.  378;  Gregory  v.  Mighell,  18  Ves.  328;  Morphett 
V.  Jones,  1  Swanst.  172;  Fabian  y.  Nunn,  L.  E.  1  Ch.  35. 

(3)  Gregory  v.  Mighell,  18  Ves.  328;  Hodson  v.  Heuland,  [1896]  2  Ch.  428. 


322  EQUITY    JURISPRUDENCE.  [CH.    XVII. 

§  763b.  In  recent  times  the  opinion  has  been  expressed  judicially 
that  the  following  propositions  result  from  the  authorities :  — 

(1)  "The  doctrine  of  part  performance  of  a  parol  agreement, 
which  enables  proof  of  it  to  be  given  notwithstanding  the  Statute 
of  Frauds,  though  principally  applied  in  the  case  of  contracts  for 
the  sale  or  purchase  of  land,  or  for  the  acquisition  of  an  interest 
in  land,  has  not  been  confined  to  those  cases. 

(2)  "  Probably  it  would  be  more  accurate  to  say  it  applies  to  all 
cases  in  which  a  court  of  equity  would  entertain  a  suit  for  specific 
performance,  if  the  alleged  contract  had  been  in  writing. 

(3)  "  The  most  obvious  case  of  part  performance  is  where  the 
defendant  is  in  possession  of  land  of  the  plaintiff  under  the  parol 
agreement. 

(4)  ' '  The  reason  for  the  rule  is  that,  where  the  defendant  has 
stood  by  and  allowed  the  plaintiff  to  fulfil  his  part  of  the  contract, 
it  would  be  fraudulent  to  set  up  the  statute. 

(5)  "  But  this  reason  applies  wherever  the  defendant  has 
obtained  and  is  in  possession  of  some  substantial  advantage  under 
a  parol  agreement,  which,  if  in  writing,  would  be  such  as  the 
court  would  direct  to  be  specifically  performed. 

(6)  "  The  doctrine  applies  to  a  parol  agreement  for  an  ease- 
ment, though  no  interest  in  land  is  intended  to  be  acquired  "  (h). 

§  764.  But  in  order  to  take  a  case  out  of  the  statute,  upon  the 
ground  of  part  performance  of  a  parol  contract,  it  is  not  only  indis- 
pensable that  the  acts  done  should  be  clear  and  definite,  and  referable 
exclusively  to  the  contract,  but  that  the  contract  should  also  be 
established  by  competent  proofs  to  be  clear,  definite,  and  unequivocal 
in  all  its  "terms.  If  the  terms  are  uncertain,  or  ambiguous,  or  not 
made  out  by  satisfactory  proofs,  a  specific  performance  will  not  (as, 
indeed,  upon  principle  it  should  not)  be  decreed.  The  reason  would 
seem  obvious  enough,  for  a  court  of  equity  ought  not  to  act  upon 
conjecture ;  and  one  of  the  most  important  objects  of  the  statute  was, 
to  prevent  the  introduction  of  loose  and  indeterminate  proofs  of  what 
ought  to  be  established  by  solemn  written  contracts.  Yet  it  is  certain 
that,  in  former  tinaes,  very  able  judges  felt  themselves  at  liberty  to 
depart  from  such  a  reasonable  course  of  adjudication,  and  granted 
relief,  notwithstanding  the  uncertainty  of  the  terms  of  the  contract. 
In  other  words,  the  court  framed  a  contract  for  the  parties,  ex  lequo 
et  bono,  where  it  found  none  (i).  Such  a  latitude  of  jurisdiction  seems 
unwarrantable  upon  any  sound  principle,  and,  accordingly,  it  has 
been  expressly  renounced  in  more  recent  times  (fc).  It  may,  perhaps, 
be  true  that,  in  such  cases  of  part,  performance,  the  court  has  not  been 

(h)  McManus  v.  Cooke,  35  Ch.  D.  681,  697. 

(i)  Anon.,  5  Vin.  Abr.  523,  pi.  40;  ibid.  622,  pi.  38;  Anon.,  cited  6  Ves.  470; 
Allan  V.  Bower,  3  Bro.  C.  C.  149. 

(k)  Milnes  v.  Gery,  14  "Ves.  400;  Reynolds  v.  Waring,  Younge,  846. 


§  7636 — 766.]  specific  performance.  323 

deterred  from  making  an  inquiry,  before  a  master,  into  the  terms  of 
the  contract,  by  the  mere  fact  that  all  the  terms  are  not  sufficiently 
before  the  court  to  enable  it  to  make  a  final  decree  (I).  But  if  such 
an  inquiry  should  end  in  leaving  the  contract  uncertain,  so  that  the 
court  cannot  say  what  its  precise  import  and  limitations  are,  then  the 
court  will  withhold  a  final  decree  for  a  specific  performance  (m). 

§  765.  It  must  be  admitted  that  the  exceptions  thus  allowed  do 
greatly  trench  upon  the  policy  and  objects  of  the  Statute  of  Frauds; 
and,  perhaps,  there  might  have  been  as  much  wisdom  originally  in 
leaving  the  statute  to  its  full  operation,  without  any  attempt  to  create 
exceptions,  even  in  cases  where  the  statute  would  enable  the  party 
to  protect  himself  from  a  performance  of  his  contract  through  a  medi- 
tated fraud.  For,  even  admitting  that  such  cases  might  occur,  they 
would  become  more  and  more  rare  as  the  statute  became  better  under- 
stood ;  and  a  partial  evil  ought  not  to  be  permitted  to  control  a  general 
convenience.  And,  indeed,  it  is  far  from  being  certain  that  these  very 
exceptions  do  not  assist  parties  in  fraudulent  contrivances,  and  increase 
the  temptations  to  perjury,  quit*  as  often  as  they  do  assist  them  in 
the  promotion  of  good  faith  and  the  furtherance  of  justice.  These 
exceptions  have  also  led  to  great  embarrassments  in  the  actual  adminis- 
tration of  equity;  and  although  in  some  cases  one  may  clearly  see  that 
no  great  mischiefs  can  occur  from  enforcing  them,  yet,  in  others, 
difficulties  may  be  stated  in  their  practical  application  which  compel 
us  to  pause,  and  to  question  their  original  propriety. 

§  766.  Considerations  of  this  sort  have  led  eminent  judges  to 
declare  that  they  would  not  carry  the  exceptions  of  cases  from  the 
Statute  of  Frauds  farther  than  they  were  compelled  to  do.  by  former 
decisions  (n).  Lord  Eedesdale  has  strongly  said,  "  The  statute  was 
made  for  the  purpose  of  preventing  perjuries  and  frauds,  and  nothing 
can  be  more  manifest  to  any  person  who  has  been  in  the  habit  of 
practising  in  courts  of  equity  than  that  the  relaxation  of  that  statute 
has  been  a  ground  of  much  perjury  and  much  fraud.  If  the  statute 
had  been  rigorously  observed,  the  result  would  probably  have  been 
that  few  instances  of  parol  agreements  would  have  occurred.  Agree- 
ments would,  from  the  necessity  of  the  case,  have  been  reduced  to 
writing ;  whereas  it  is  manifest  that  the  decisions  on  the  subject  have 
opened  a  new  door  to  fraud,  and  that,  under  pretence  of  part  execution, 
if  possession  is  had  in  any  way  whatsoever,  means  are  frequently 
found  to  put  a  court  of  equity  in  such  a  situation  that,  without  depart- 
ing from  its  rules,  it  feels  itself  obliged  to  break  through  the  statute. 
And,  I  remember,  it  was  mentioned  in  one  case,  in  argument,  as  a 

(I)  Allan  V.  Bower,  3  Bro.  C.  C.  149,  and  Mr.  Belt's  notes,  p.  151,  notes  (2),  (3). 
(m)  Lindsay  v.  Lynch,  2  Sch.  &  Lefr.  7,  8. 

(n)  Lord  Alvanley,  M.E.,  Forster  v.  Hale,  3  Ves.  at  p.  713;  Alexander,  C.B., 
Reynolds  v.  Waring,  Younge,  at  p.  350. 


324  EQUITY     JURISPHUDKNCE.  [CH.    XVII. 

common  expression  at  the  bar,  that  it  had  become  a  practice  to 
improve  gentlemen  out  of  their  estates.  It  is,  therefore,  absolutely 
necessary  for  courts  of  equity  to  niake  a  stand,  and  not  carry  the 
decisions  farther  "  (o). 

§  767.  We  have  already  had  occasion  to  see  that  parol  agreements, 
even  with  part  performance,  will  not  be  decreed  to  be  specifically 
executed  unless  the  whole  terms  of  the  contract  are  clear  and 
definitely  ascertained  (p).  The  same  rule  applies  to  cases  of  written 
contracts.  If  they  are  not  certain  in  themselves,  so  as  to  enable  the 
court  to  arrive  at  the  clear  result  of  what  all  the  terms  are,  they  will 
not  be  specifically  enforced  (q).  In  the  first  place,  it  would  be 
inequitably  to  carry  a  contract  into  effect  where  the  court  is  left  to 
ascertain  the  intentions  of  the  parties  by  mere  conjecture  or  guess; 
for  it  might  be  guilty  of  the  error  of  decreeing  precisely  what  the 
parties  or  one  of  them  never  did  intend  or  contemplate  (r).  In  the 
next  place,  if  any  terms  are  to  be  supplied,  it  must  be  by  parol 
evidence ;  and  the  admission  of  such  evidence  would  let  in  all  the 
mischief  intended  to  be  guarded  against  by  the  statute.  Indeed,  it 
would  be  inconsistent  with  the  general  principles  of  evidence  (although 
there  are  exceptions  (s) )  which  are  administered  in  courts  of  equity 
as  well  as  in  courts  of  law ;  for  the  general  rule  in  both  courts  is,  that 
parol  evidence  is  not  admissible  to  vary  or  explain  a  written  con- 
tract (t) ;  the  natural  inference  being  that  the  parties  regard  a  formal 
instrument  as  embodying  the  whole  terms  of  their  ultimate  agreement, 
an  inference  which  may  be  displaced  by  appropriate  evidence  (u). 
Evidence  is  admissible  and  indeed  necessary  to  identify  the  subject- 
matter  (x). 

§  768.  Another  exception  to  the  statute,  turning  upon  similar 
considerations,  is,  where  the  agreement  is  intended  by  the  parties  to 
be  reduced  to  writing,  according  to  the  statute ;  but  it  is  prevented 
from  being  done  by  the  fraud  of  one  of  the  parties.  In  such  a  case, 
courts  of  equity  have  said  that  the  agreement  shall  be  specifically 
executed,  for  otherwise,  the  statute,  designed  to  suppress  fraud,  would 


(o)  Lindsay  v.  Lynch,  2  Sch.  c&  Lefr.  4,  5,  7. 

(p)  Ante,  §§  751,  764o. 

(g)  Harnett  v.  Yeilding,  2  Sch.  &  Lefr.  649;  Taylor  v.  Partington,  7  De  G. 
M.  &  G.  328;  Douglas  v.  Baynes,  [1908]  A.  C.  477. 

(r)  Lindsay  v.  Lynch,  2  Sch.  &  Lefr.  7,  8;  Harnett  v.  Yeilding,  2  Sch.  &  Lefr. 
555 ;  Holloway  v.  Headington,  8  Sim.  324. 

(s)  Some  of  these  exceptions  have  been  already  considered  under  the  heads  of 
Accident,  Mistake,  and  Fraud;  but  the  full  examination  of  the  subject  belongs  to  a 
treatise  on  Evidence. 

(t)  Marq.  Townshend  v.  Stangroom,  6  Ves.  328;  Rich  v.  Jackson,  in  note,  6  Ves. 
334,  note  (c);  Woollam  v.  Hearn,  7  "Ves.  211. 

(«)  Harris  v.  Rickett,  4  H.  &  N.  1;  Loxley  v.  Heath,  1  De  G.  F.  &  J.  489; 
Legott  V.  Barrett,  16  Ch.  D.  306;  Page  v.  Midland  Ry.,  [1894]  1  Ch.  11. 

(x)  Ogilvie  v.  Foljambe,  3  Mer.  63;  Macdonald  v.  Longbottom,  1  Ell.  &  B.  977; 
Shardlow  v.  Cotterill,  20  Ch.  D.  90. 


§  767 — 769.]  SPECIFIC  performance.  325 

be  the  greatest  protection  to  it  (y).  Thus,  if  one  agreement  in  writing 
should  be  proposed  and  drawn,  and  another  should  be  fraudulently 
and  secretly  brought  in  and  executed  in  lieu  of  the  former,  in  this  and 
the  like  cases  equity  would  relieve.  So,  if  instructions  are  given  by 
an  intended  husband  to  prepare  a  marriage  settlement,  and  he  promises 
to  have  the  settlement  reduced  to  writing,  and  then  fraudulently  aJid 
secretly  prevents  it  from  being  done,  and  the  marriage  takes  effect,  in 
consequence  of  false  assurances  and  contrivances,  a  specific  perform- 
ance wiU  be  decreed  (2).  But,  if  there  has  been  no  fraud,  and  no 
agreement  to  reduce  the  matter  to  writing ;  but  the  one  party  has 
placed  reliance  solely  upon  the  honour,  word,  or  promise  of  the  other, 
no  relief  will  be  granted  (o) ;  for  in  such  a  case  the  party  chooses  to 
rest  upon  a  parol  agreement,  and  must  take  the  consequences  (b). 
And  the  subsequent  marriage  is  not  deemed  a  part  performance, 
taking  the  case  out  of  the  statute,  contrary  to  the  rule  which  prevails 
•in  other  cases  of  contract.  In  this  respect  it  is  always  treated  as  a 
peculiar  case  standing  on  its  own  grounds  (c).  So,  if  a  man  should 
treat  for  a  loan  of  money  on  mortgage,  and  the  conveyance  is  to  be 
by  an  absolute  deed  of  the  mortgagor,  and  a  defeasance  by  the  mort- 
gagee ;  and,  after  the  absolute  deed  is  executed,  the  mortgagee 
fraudulentlj'  refuses  to  execute  the  defeasance,  equity  will  decree  a 
specific  performance  (d).  So,  where  a  father  had  purchased  lands  in 
fee,  and  on  his  death-bed  told  his  eldest  son  that  the  lands  were 
purchased  with  his  second  son's  money,  and  that  he  intended  to  give 
them  to  him,  and  the  eldest  son  promised  that  he  should  enjoy  them 
accordingly,  and  the  father  died,  and  the  eldest  son  refused  to  comply 
with  his  promise ;  it  was  held  that  the  promise  should  be  specifically 
performed,  upon  the  ground  of  fraud,  notwifhstanding  the  objection 
that  there  ought  to  have  been  a  declaration  of  the  use  or  trust,  under 
the  statute  (e).  Other  cases  of  a  like  character  have  occurred  under 
the  head  of  fraud,  and  similar  considerations  may  apply  in  cases  of 
accident  and  mistake,  clearly  and  incontrovertibly  made  out  (/). 

§  769.  And  here  it  is  important  to  take  notice  of  a  distinction 
between   the   case    of   a   plaintiff   seeking   a   specific    performance    in 

(y)  Montacute  v.  Maxwell,  1  P.  Will.  618 ;  s.c.  1  Eq.  Abr.  19,  Free.  Ch.  526. 
(z)  Ibid.     See  ante,  §  §  331,  374;  Taylor  v.  Beech,  1  Vea.  297,  298;  Redding 
V.  Wilkes,  3  Bro.  C.  C.  400;  Dund<is  v.  Dutens,  1  Ves.  Jun.  196,  199;  s.c.  2  Cox  234. 

(a)  Wood  V.  Midgley,  5  De  G.  M.  &  G.  41. 

(b)  It  has  sometimes  been  attempted  to  except  from  the  statute  oases  where  the 
parties  have  expressly  agreed  that  their  contract  should  be  reduced  to  writing.  But 
this  doctrine,  except  in  cases  of  fraud,  has  been  expressly  denied.  Hollis  v.  Whiteing, 
1  Vern.  151,  159;  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  565. 

(c)  Caton  v.  Gaton,  L.  E.  1  Ch.  65 ;  Johnstone  v.  Mappin,  60  L.  J.  Ch.  241. 

(d)  Maxwell  v.  Montacute,  Prsc.  Ch.  526;  Walker  v.  Walker,  2  Atk.  99;  Young 
v.  Peachey,  2  Atk.  258;  Joynes  v.  Satham,  3  Atk.  389. 

(e)  Sellack  v.  Harris,  5  Vin.  Abr.  621,  pi.  31;  Podmore  v.  Gunning,  7  Sim.  644; 
post,  §  1265. 

(/)  See  ante,  under  the  heads  of  Accident,  Mistake,  and  Fraud,  §§  99,  206, 
256,  386. 


326  EQUITY    JURISPRUDENCE.  [CH.    XVII. 

equity,  and  the  case  of  a  defendant,  resisting  such  a  performance. 
We  have  already  seen,  that  the  specific  execution  of  a  contract  in 
equity  is  a  matter,  not  of  absolute  right  in  the  party,  but  of  sound 
discretion  in  the  court  (g).  Hence,  it  requires  a  much  less  strength  of 
case  on  the  part  of  the  defendant  to  resist  an  action  to  perform  a 
contract,  than  it  does  on  the  part  of  the  plaintiff  to  maintain  an  action 
to  enforce  a  specific  performance;  for  the  refusal  to  enforce  a  specific 
performance  of  a  contract,  does  not  deprive  the  party  of  his  remedy 
at  law  (h).  An  agreement  to  be  entitled  to  be  carried  into  specific 
performance,  ought  (as  we  have  seen)  to  be  certain,  fair  and  just  in  all 
its  parts  (i).  Courts  of  equity  will  not  decree  a  specific  performance 
in  cases  of  fraud  or  mistake  (k) ;  or  of  hard  and  unconscionable  bar- 
gains ;  or  where  the  decree  would  produce  injustice ;  or  where  it  would 
compel  the  party  to  an  illegal  or  immoral  act;  or  where  it  would  be 
against  public  policy  (I) ;  or  where  it  would  involve  a  breach  of  trust ; 
or  where  a  performance  has  become  impossible;  and,  generally,  not  in 
any  cases  where  such  a  decree  would  be  inequitable  under  all  the 
circumstances  (iw). 

§  770.  But  courts  of  equity  do  not  stop  here;  for  they  will  let  in 
the  defendant  to  defend  himself,  by  evidence  to  resist  a  judgment, 
where  the  plaintiff  would  not  always  be  permitted  to  establish  his  case 
by  the  like  evidence.  Thus,  for  instance,  courts  of  equity  will  allow 
the  defendant  to  show,  that,  by  fraud,  accident,  or  mistake,  the  thing 
bought  is  different  from  what  he  intended;  or  that  material  terms 
have  been  omitted  in  the  written  agreement;  or  that  there  has  been 
a  variation  of  it  by  parol  (n) ;  or  that  there  has  been  a  parol  discharge 
of  a  written  contract  (o).  The  ground  of  this  doctrine  is  that  which 
has  been  already  alluded  to,  that  courts  of  equity  ought  not  to  be 
active  in  enforcing  claims,  which  are  not,  under  the  actual  circum- 
stances, just,  as  between  the  parties.  The  statute  has  said,  that  no 
person  shall  be  charged  with  the  execution  of  an  agreement,  who  has 
not  personally,  or  by  his  agent,  signed  a  written  agreement.  But  the 
statute  does  not  say,  that,  if  a  written  agreement  is  signed,  the  same 
exceptions  shall  not  hold  to  it,  as  did  before  the  statute.     Now,  before 

(g)  Ante,  §  742. 

(h)  Vigers  v.  Pike,  8  CI.  &  F.  562,  and  Lord  Cottenham's  remarks,  p.  645; 
Tamplin  v.  James,  16  Ch.  D.  215. 

(t)  Buxton  V.  Lister,  3  Atk.  385;  Harnett  v.  Yeilding,  2  Sch.  &  Le£r.  554;  Ellard 
V.  Landaff,  1  Ball  &  Beat.  250;  ante,  §  §  693,  750,  751,  767.  See  also  Drysdale  v. 
Mace,  5  De  G.  M.  &  G.  103. 

(k)  Davis  v.  Shepherd,  L.  E.  1  Ch.  410.  Where  mistake  is  not  mutual,  but  parties 
can  be  restored  to  statu  quo,  equity  will  rectify  with  option  on  part  of  defendant  to 
rescind.    Harris  v.  Pepperell,  L.  E.  5  Eq.  1.    See  Bloomer  v.  Spittle,  L.  E.  13  Eq.  427. 

(l)  See  Flanagan  v.  Great  Western  Ry.,  L.  R.  7  Eq.  116. 

(m)  Ante,  §  650;  Kimberley  v.  Jennings,  6  Sim.  340;  Harnett  v.  Yeilding,  2  Sch. 
&  Lefr.  554,  555 ;  Greenaway  v.  Adams,  13  Ves.  399,  400 ;  Denton  v.  Stuart,  1  Cox  258. 

(n)  Woollam  v.  Hearn,  7  Ves.  211. 

(0)  Morris  v.  Baron  &  Co.,  [1918]  A.  C.  1. 


§  770 — 772.]  SPECIFIC  peefoemance.  327 

the  statute,  if  a  bill  had  been  brought  for  a  specific  performance,  and 
it  had  appeared  that  the  agreement  had  been  prepared  contrary  to  the 
intentions  of  the  defendant,  he  might  have  resisted  the  performance  of 
it.  The  statute  has  made  no  alteration  in  this  respect  in  the  situation 
of  the  defendant.  It  does  not  say  a  written  agreement  shall  bind; 
but  only  that  an  unwritten  agreement  shall  not  be  enforceable  (p). 
There  are,  however,  certain  exceptions  to  this  doctrine,  which  have  been 
allowed  to  prevail;  as,  for  example,  where  the  defendant  sets  up,  in 
his  defence  to  a  bill  for  the  specific  performance  of  a  written  contract, 
that  there  has  been  a  parol  variation  or  addition  thereto  by  the  parties ; 
if  the  plaintiff  assents  thereto,  he  may  amend  his  claim,  and  at  his 
election  have  a  specific  performance  of  the  written  contract,  with  such 
variations  or  additions  so  set  up ;  for,  under  such  circumstances,  there 
is  a  written  admission  of  each  party  to  the  parol  variation  or  addition, 
and  there  can  be  no  danger  of  injury  to  the  parties,  or  evasion  of  the 
rules  of  evidence,  or  of  the  Statute  of  Frauds  (g).  So,  the  court  may 
decree  a  specific  performance  in  favour  of  the  plaintifi,  notwithstanding 
he  does  not  make  out  the  case  stated  by  his  bill,  if  he  offers  to  comply 
with  the  contract  as  the  defendant  states  it  (r). 

§  771.  In  general,  it  may  be  stated  that,  to  entitle  a  party  to  a 
specific  performance,  he  must  show  that  he  has  been  in  no  default  in 
not  having  performed  the  agreement,  and  that  he  has  taken  all  proper 
steps  towards  the  performance  on  his  own  part.  If  he  has  been  guilty 
of  gross  laches,  or  if  he  applies  for  relief  after  a  long  lapse  of  time, 
unexplained  by  equitable  circumstances,  his  action  will  be  dismissed ; 
for  courts  of  equity  do  not,  any  more  than  courts  of  law,  administer 
relief  to  the  gross  negligence  of  suitors  (s).  But  this  doctrine  is  to  be 
taken  (as  we  shall  presently  see)  with  some  qualifications.  For, 
although  courts  of  equity  will  not  encourage  laches,  yet  if  there  has 
not  been  a  strict  legal  compliance  with  the  terms  of  the  contract  and 
the  non-compliance  does  not  go  to  the  essence  of  the  contract,  relief 
will  be  granted  (t). 

§  772.  It  has  been  laid  down,  that,  if  a  man  has  performed  a  valu- 
able part  of  an  agreement,  and  is  in  no  default  for  not  performing 
the  residue,  there  it  is  but  reasonable  that  he  should  have  a  specific 
execution  of  the  other  part  of  his  contract,  or  at  least  should  recover 
back  what  he  has  paid,  so  that  he  may  not  be  a  loser.  For,  since  he 
entered  upon  the  performance  in  contemplation  of  the  equivalent 
from  the  other  party,  there  is  no  reason  why  an  accidental  loss  should 
fall  upon  him  any  more  than  upon  the  other  (m).     A  distinction  has 

(p)  Lord  Selborne,  L.C,  Jervis  v.  Berrlkge,  L.  E.  8  Ch.  at  p.  360;  Snelling  v. 
Thomas,  L.  B.  17  Eq.  303. 

(g)  London  and  Birmingham  Ry.  v.  Winter,  Cr.  &  Ph.  57. 

(r)  Marquess  Townshend  v.  Stangrom,  6  Ves  328 ;  Smith  v.  Wheatcroft,  9  Ch.  D. 
223. 

(s)  Howe  v.  Smith,  27  Ch.  D.  89;  Cornwall  v.  Benson,  [1900]  2  Ch.  298. 

(t)  Post,  §  §  776,  777.  (u)  Gilb.  Lex  Prsetor.  240,  241 ;  post,  §  §  775,  976. 


328  EQUITY    JURISPRUDENCE.  [CH.    XVII. 

been  put  upon  this  subject  by  Lord  Chief  Baron  Gilbert,  which  is 
entitled  to  consideration  because  it  apparently  reconciles  authorities 
which  might  otherwise  seem  discordant.  It  is  the  distinction  between 
cases  in  which  the  plaintiff  is  in  statu  quo  as  to  all  that  part  of  his 
agreement  which  he  has  performed,  and  those  casefe  in  which  he  is 
not  in  statu  quo.  In  the  former  cases,  equity  will  not  enforce  the 
agreement,  if  the  plaintiff  cannot  completely  perform  the  whole  of 
his  part  of  it;  in  the  latter  cases,  equity  will  enforce  it,  notwith- 
standing he  is  incapable  of  performing  the  remainder  by  a  subsequent 
accident  (x). 

§  773.  Thus,  upon  a  marriage  settlement,  A.  contracted  to  settle 
a  manor  on  his  wife  and  the  heirs  of  their  bodies,  and  to  clear  it 
of  incumbrances,  and  to  settle  a  separate  maintenance  on  her,  and 
likewise  to  sell  some  pensions,  in  order  to  make  a  further  provision 
for  her  and  the  issue  of  the  marriage ;  and  his  father-in-law  agreed 
to  settle  £3,000  per  annum  on  A.  for  life,  remainder  to  the  wife  for 
life,  and  so  to  the  issue  of  the  marriage.  A.  cleared  the  manor  of 
incumbrances,  and  settled  it  accordingly,  and  settled  also  the  separate 
maintenance ;  but  he  did  not  sell  the  pensions,  nor  settle  the  further 
provisions.  The  wife  died  without  issue;  and  A.  brought  his  bill 
to  have  the  £3,000  settled  on  him  during  his  life.  The  court  refused 
to  decree  it;  because  A.  was  in  statu  quo,  as  to  all  that  part  of  the 
agreement  which  he  had  performed,  and  not  having  performed  the 
whole,  and  the  other  part  being  now  impossible,  and  no  compensation 
being  possible  to  be  adjusted  for  it,  he  had  no  title  in  equity  to  a 
specific  performance,  since  such  performance  would  not  be  mutual. 
But  the  issue  of  A.,  if  any,  might  have  been  relieved,  because  they 
would  have  been  in  no  default.  This  case  illustrates  the  first  propo- 
sition (j/). 

§  774.  But  (which  is  the  second  case)  if  a  man  has  performed  so 
much  of  the  agreement,  as  that  he  is  not  in  statu  quo,  and  is  in  no 
default  for  not  performing  the  residue,  there  he  shall  have  a  specific 
execution  of  the  agreement  from  the  other  party.  As,  if  a  man  has 
contracted  for  a  portion  to  be  received  with  the  wife,  and  has  agreed 
to  settle  lands  of  a  certain  value  upon  the  wife,  and  her  issue  free  of 
incumbrances ;  and  he  sells  part  of  his  lands  to  disincumber  the  other 
lands,  and  is  proceeding  to  disincumber  and  settle  the  rest.  In  such 
a  case,  if  the  wife  should  die  without  issue  before  the  settlement  is 
actually  made,  yet  he  shall  have  the  portion,  because  he  cannot  be 
placed  in  statu  quo,  having  sold  a  part  of  his  lands;  and  there  was 

(x)  Gilb.  Lex  PrsBtor.  240. 

(j/)  Gilb.  Lex  Prsetor.  240,  241;  Feversham  v.  Watson,  Bep.  temp.  Pinch  445; 
s.c.  2  Preem.  35.  But  see  Hovenden's  note  to  2  Preem.  35  (4).  The  case  seems  to 
have  been  put  in  the  reports  upon  the  ground  that  the  covenants  of  the  plaintiff  were 
by  vpay  of  condition  precedent,  which  could  not  be  dispensed  with  in  equity.  Eep. 
temp.  Pinch  447 ;  2  Preem.  35. 


§   773 — 777.]  SPECIFIC  performance.  329 

no  default  in  him,  since  he  was  going^  on  to  perform  his  contract;  and, 
therefore,  the  accident  of  the  wife's  death  shall  not  prejudice  him  («). 

§  776.  Where  the  terms  of  an  agreement  have  not  been  strictly 
complied  with,  or  are  incapable  of  being  strictly  complied  with;  still, 
if  there  has  not  been  gross  negligence  in  the  party,  and  it  is  con- 
scientious that  the  agreement  should  be  performed;  and  if  compensa- 
tion may  be  made  for  an  injury  occasioned  by  non-compliance  with  the 
strict  terms;  in  all  such  cases  courts  of  equity  will  interfere,  and 
decree  a  specific  performance.  For  the  doctrine  of  courts  of  equity  is, 
not  forfeiture,  but  compensation  (a) ;  and  nothing  but  such  a  decree 
will,  in  such  cases,  do  entire  justice  between  the  parties  (b).  Indeed, 
in  some  cases  courts  of  equity  will  decree  a  specific  execution,  not 
according  to  the  letter  of  the  contract,  if  that  will  be  unconscientious ; 
but  they  will  modify  it  according  to  the  change  of  circumstances  (c). 

§  776.  One  of  the  most  frequent  occasions  on  which  courts  of 
equity  are  asked  to  decree  a  specific  performance  of  contract  is,  where 
the  terms  for  the  performance  and  completion  of  the  contract  have 
not,  in  point  of  time,  been  strictly  complied  with.  Time  is  not 
generally  deemed  in  equity  to  be  of  the  essence  of  the  contract  for  the 
sale  of  land,  unless  the  parties  have  expressly  so  treated  it,  or  it  neces- 
sarily follows  from  the  nature  and  circumstances  of  the  contract  (d). 
And  "  whatever  the  leaning  of  the  Court  in  earlier  times  may  have 
been,  the  tendency  of  the  modern  cases  has  been  to  hold  the  parties 
seeking  the  assistance  of  the  Court  on  bills  for  specific  performance  to 
the  rule  of  equity,  which  requires  them  to  be  prompt  in  asking  such 
assistance  "  (e).  Even  where  time  is  of  the  essence  of  the  contract,  it 
may  be  waived  by  proceeding  in  the  purchase  after  the  time  has 
elapsed;  and  if  time  was  not  originally  made  by  the  parties  of  the 
essence  of  the  contract,  yet  it  may  become  so  by  notice,  if  th'e  other 
party  is  afterwards  guilty  of  improper  delays  in  completing  the  pur- 
chase (/).  It  should  be  observed  that  in  some  cases  the  nature  of 
the  property  contracted  for  makes  time  of  the  essence  of  the  contract, 
as,  for  instance,  if  the  thing  sold  is  a  public-house,  or  of  an  uncertain 
and  fluctuating  value  (g). 

§  777.  Courts  of  equity  will  also  relieve  the  party  vendor,  by 
decreeing  a  specific  performance,  where  he  has  been  unable  to  comply 
with  his  contract  according  to  the  terms  of  it,  from  the  stat«  of  his 

(z)  Gilb.  Lex  Prsetor.  241,  242;  Meredith  v.  Wynn,  1  Eq.  Abr.  71;  s.c.  Prec.  Ch. 
312. 

(a)  Page  v.  Broom,  i  Buss.  6,  19;  ante,  §  772;  post,  §  776. 

(b)  Davis  v.  Hone,  2  Sch.  &  L.  347 ;  Lennon  v.  Napper,  2  Sch.  &  L.  684. 

(c)  Davis  V.  Hone,  2  Sch.  &  L.  347. 

(d)  Seton  v.  Slade,  7  Vea.  265,  2  Wh.  &  T.  L.  C.  475;  Wheeler  v.  D'Esterre,  2 
Dow,  359;  Renter  v.  Sala,  4  C.  P.  D.  239;  Stickney  v.  Keehle,  [1915]  A.  C.  386. 

(e)  Wigram,  V.C.,  Southcomb  v.  Bishop  of  Exeter,  6  Hare,  219,  220. 

(/)  King  v.  Wilson,  6  Beav.  124 ;  Gee  v.  Pearse,  2  De  G.  &  Sm.  325 ;  Bruner  v. 
Moore,  [1904]  1  Oh.  305 ;  Stickney  v.  Keehle,  [1915]  A.  C.  386. 

(g)  Day  v.  Luhke,  L.  E.  5  Eq.  133;  Gowles  v.  Oale,  L.  R.  7  Ch.  12. 


330  EQUITY     JURISPRUDENCE.  [CH.    XVII. 

title  at  the  time,  if  he  comes  within  a  reasonable  time,  and  the  defect 
is  cured  (h).  So,  if  there  has  been  no  unnecessary  delay,  courts  of 
equity  will  sometimes  decree  a  specific  performance  in  favour  of  the 
vendor,  aJthougli  he  was  unable  to  make  a  good  title  at  the  time  when 
action  was  brought  (i).  So,  if  the  circumstances  of  the  quality  or  quan- 
tity of  land  are  not  correctly  described,  and  the  misdescription  is  not 
very  material,  and  admits  of  complete  compensation,  courts  of  equity 
will  decree  a  specific  performance.  In  all  such  cases,  courts  of  equity 
look  to  the  substance  of  the  contract,  and  do  not  allow  small  matters 
of  variance  to  interfere  with  the  manifest  hitention  of  the  parties,  and 
especially  where  full  compensation  can  be  made  to  the  party  on  account 
of  any  false  or  erroneous  description  (k). 

§  778.  But  where  there  is  a  substantial  defect  in  the  estate  sold, 
either  in  the  tdtie  itself,  or  in  the  representation  or  description,  or 
the  nature,  character,  situation,  extent,  or  quality  of  it,  which  is  un- 
known to  the  vendee,  and  in  regard  to  which  he  is  not  put  upon 
inquiry,  there  a  specific  performance  will  not  be  decreed  against 
him  (I).  Upon  the  like  ground  a  party  contracting  for  the  entirety  of 
an  estate,  will  not  be  compelled  to  take  aji  undivided  aliquot  part 
of  it  (w).  A  vendor  having  a  partial  interest  in  land  and  contracting 
to  sell  a  larger  interest,  may  compel  a  specific  performance,  if  he  can 
force  or  obtain  the  concurrence  of  all  other  necessary  parties  (?j.).  But 
a  vendor  having  no  interest  therein  cannot  force  the  title  of  a  third 
party  upon  an  unwilling  purchaser  (o).  And  as  a  further  illustration 
of  the  principle  that  equity  regards  the  substance  rather  than  the 
letter,  a  vendor  may  force  a  titie  from  himself,  if  valid,  although 
different  from  that  contra-cted  to  be  shown  (p).  At  law  the  rule  was 
otherwise  (g). 

§  778*.  And  where  the  plaintiffs,  a  railway  company,  agreed  with 
the  defendants  to  execute  a  branch  railway  according  to  specifications 
furnished  by  their  engineer,  and  to  give  a  bond  to  secure  the  perform- 
ance of  the  contract,  it  was  held  that  the  agreement  could  not  be 
enforced  as  regards  the  construction  of  the  railway,  because,  from  the 
nature  of  the  works,  the  court  could  not  superintend  their  execution 
consistently   with   public  convenience ;   nor   could    they    enforce    the 

(h)  Guest  V.  Homfray,  5  Ves.  818;  Esdaile  v.  Stephenson,  1  Sim.  &  Stu.  122; 
Wynn  v.  Morgan,  7  Ves.  202;  In  re  Atkinson  v.  Hersell,  [1912]  2  Ch.  1. 

(8)  Hoggart  v.  Scott,  1  Euss.  &  Myl.  293;  s.c.  Tamlyn  500;  Curling  v.  Flight, 
2  Ph.  613. 

(fe)  Poole  V.  Shergold,  1  Cox  273;  2  Bro.  C.  C.  118;  Casamajor  v.  Strode,  2  M. 
&  K.  706;  Denny  v.  Hancock,  L.  R.  6  Ch.  1.     See  ante,  §  141. 

(I)  Peers  v.  Lambert,  7  Beav.  546. 

(m)  Dalby  v.  Pullen,  3  Sim.  29. 

(n)  Graham  v.  Oliver,  3  Beav.  124;  Sidebotham  v.  Barrington,  3  Beav.  524; 
4  Beav.  110 ;  6  Beav.  261 ;  In  re  Baker  and  Salmon,  [1907]  1  Ch.  238 

(o)  In  re  Bryant  and  Bamingham,  4  Ch.  D.  218. 

(p)  Games  v.  Bonner,  54  L.  J.  Ch.  517. 

(g)  Forster  v.  Hoggart,  15  Q.  B.  155. 


§   778 — 779a.]  specific  perfoemance.  331 

plaintiffs'  portion  of  the  contract,  to  procure  the  land;  and  they  would 
not  therefore  decree  a  part  performance  of  the  contract,  by  the 
execution  of  the  stipulated  bond,  if  indeed,  in  any  case  of  the  advance 
of  money,  and  the  agreement  to  execute  a  bond  for  its  repayment,  a 
court  of  equity  will  compel  the  execution  of  the  bond.  The  remedy 
at  law  would  seem  ample  in  all  such  cases  (r). 

§  779.  We  have  thus  far  principally  spoken  of  cases  of  actions  by 
the  vendor  against  the  purchaser  for  a  specific  performance,  where 
the  contract  has  not  been,  or  cannot  be,  strictly  complied  with.  But 
actions  may  also  be  brought  by  the  purchaser  for  a  specific  performance 
under  similar  circumstances  where  the  vendor  is  incapable  of  making 
a  complete  title  to  all  the  property  sold,  or  where  there  has  been  a 
substantial  misdescription  of  it  in  important  particulars;  or  where 
the  terms,  as  to  the  time  and  manner  of  execution,  have  not  been 
punctually  or  reasonably  complied  with  on  the  part  of  the  vendor. 
In  these  and  the  like  cases,  as  it  would  be  unjust  to  allow  the  vendor 
to  take  advantage  of  his  own  wrong,  or  default,  or  misdescription, 
courts  of  equity  allow  the  purchaser  an  election  to  proceed  with  the 
purchase  pro  tanto,  or  to  abandon  it  altogether.  The  general  rule 
in  all  such  cases,  is  that  the  purchaser,  if  he  chooses,  is  entitled  to 
have  the  contract  specifically  perforrned,  as  far  as  the  vendor  can 
perform  it,  and  to  have  an  abatement  out  of  the  purchase-money  or 
compensation,  for  any  deficiency  in  the  title,  quantity,  quality,  des- 
cription, or  other  matters  touching  the  estate,  unless  the  granting  of 
this  extraordinary  remedy  should  inflict  unreasonable  hardship  upon 
the  seller  (s). 

§  779a..  The  proper  construction  of  the  clause  that  ' '  if  any  error, 
misstatement,  or  omission  in  the  particulars  should  be  discovered,  the 
error  should  not  annul  the  sale,",  and  similar  clauses,  has  been  the 
subject  of  much  discussion  in  the  courts.  The  law  as  laid  down  by 
Tindal,  C.J.,  in  FligM  v.  Booth;  in  the  following  terms,  has  been  uni- 
versally followed: — "Where  the  misdescription,  although  not  pro- 
ceeding from  fraud,  is,  in  a  material  and  substantial  point,  so  far 
affecting  the  subject-matter  of  the  contract  that  it  may  reasonably  be 
supposed  that,  but  for  such  misdescription,  the  purchaser  might  never 
have  entered  into  the  contract  at  all,  in  such  case  the  contract  is 
avoided  altogether,  and  the  purchaser  is  not  bound  to  resort  to  the 
clause  of  compensation  "  (t). 

(r)  South  Wales  Ry.  v.  Wythes,  1  Kay  &  J.  186.  See  also  Paris  Chocolate 
Co.  V.  Crystal  Palace  Co.,  3  Sm.  &  Giff.  119,  cited  and  followed  in  Bellamy  v.  Deben- 
ham,  [1891]  1  Ch.  412,  422. 

(s)  Hooper  v.  Smart,  L.  E.  18  Bq.  683;  Horrocks  v.  Rigby,  9  Ch.  D.  180;  In  re 
G.  N.  Ry.  and  Sanderson,  25  Ch.  D.  788;  In  re  Fawcett  and  Holmes,  45  Ch.  D.  150; 
Rudd  V.  Lascelles,  [1900]  1  Ch.  815. 

(t)  1  Bing.  N.  C.  370,  377.  Approved  and  followed  in  In  re  Fawcett  and  Holmes, 
42  Ch.  D.  150. 


332  EQUITY     JURISPEUDENCE.  [CH.    XVII. 

§  780.  Perhaps  it  may  be  truly  said,  that  in  some  of  the  cases,  in 
which,  in  former  times,  the  strict  terms  of  the  contract,  as  to  time, 
•description,  quantity,  quality,  and  other  circumstances  of  the  estate 
sold,  were  dispensed  with,  courts  of  equity  went  beyond  the  true 
limits,  to  which  every  jurisdiction  of  this  sort  should  be  confined,  as 
it  amounted  to  a  substitution  pro  tanto,  of  what  the  parties  had  not 
■contracted  for  (u).  But  the  tendency  of  the  modern  decisions  is  to 
bring  the  doctrine  within  such  moderate  bounds  as  seem  clearly  indi- 
cated by  the  principles  of  equity,  and  by  a  reasonable  regard  to  the 
convenience  of  mankind,  as  well  as  to  the  common  accidents,  mistakes, 
infirmities,  and  inequalities  belonging  to  all  human  transactions  {x). 

§  781.  We  have  hitherto  been  considering  cases  of  contracts 
jespecting  lands  within  the  reach  of  the  Statute  of  Frauds.  But 
other  cases  within  the  reach  of  other  clauses  of  the  Statute  of  Frauds 
liave  occurred,  and  may  again  occur,  in  which,  also,  the  remedial 
justice  of  courts  of  equity  ought  to  be  exerted  by  decreeing  a  specific 
performance  of  the  contemplated  act  of  trust.  Thus,  if  a  man,  in 
confidence  of  the  parol  promise  of  another  to  perform  the  intended 
a,ct,  should  omit  to  make  certain  provisions,  gifts,  or  arrangements  for 
other  persons,  by  will  or  otherwise,  such  a  promise  would  be  specific- 
ally enforced  in  equity  against  such  a  promisee ;  although  founded  on 
■&  parol  declaration,  creating  a  trust  contrary  to  the  Statute  of  Frauds ; 
for  it  would  be  a  fraud  upon  all  the  other  parties  to  permit  him  to 
(derive  a  benefit  from  his  own  breach  of  duty  and  obligation  [y). 
Therefore,  where  an  executor  promised  the  testator  to  pay  a  legacy, 
.and  told  the  testator  he  need  not  put  it  into  his  will,  he  was  decreed 
•specifically  to  perform  it  (a).  So,  where  a  testator  was  about  altering 
■his  will,  for  fear  that  there  would  not  be  assets  enough  to  pay  all  the 
legacies,  and  his  heir-at-law  persuaded  him  not  to  alter  it,  promising 
to  pay  all  the  legacies,  he  was  decreed  specifically  to  perform  his 
promise  (a).  And  the  same  result  would  follow  where  the  party  bene- 
fited was  innocent  of  the  fraud  (b). 

§  782.  These  may  suffice  as  illustrations  of  the  class  of  cases 
calling  for  a  specific  performance,  which  are  within  the  purview  of 
the  Statute  of  Frauds.  And  we  shall  now  proceed,  in  the  next  place, 
to  a  brief  statement  of  the  other  class  of  cases  already  referred  to, 
namely,  those  where  relief  is  sought  under  written  or  parol  contracts 
not  within  the  Statute  of  Frauds.     Many  of  these  cases  have  already 

(u)  See  Halsey  v.  Grant,  13  Ves.  76;  Dtewe  v.  Hanson,  6  Vea.  678;  Bowyer  v. 
Bright,  13  Ves.  702;  Chattock  v.  Muller,  8  Ch.  D.  177. 
(x)  Drewe  v.  Hanson,  6  Ves.  678. 
iy)  Ante,  §  §  64,  256,  439. 
(z)  Beech  v.  Kennigate,  Ambler  67 ;  s.c.  1  Ves.  123. 

(a)  Chamberlaine  v.  Chamberlaine ,  2  Ereem.  34. 

(b)  Lutterel  v.  Lord  Waltham,  cited  14  Ves.  290;  1  J.  &  W.  96 ;  Bulkley  v  Wil- 
Jord,  2  CI.  &  F.  102. 


§  780 — 785.]  SPECIFIC  peefoemance.  33S 

been  incidentally  taken  notice  of  under  the  other  heads,  and  especially 
under  the  heads  of  Accident,  Mistake,  and  Fraud  (c). 

§  783.  Illustrations  may  easily  be  put,  of  cases  where  no  action 
whatsoever  would  He  at  law  between  the  parties.  Thus,  if  A.  should 
enter  into  a  contract  with  B.,  which  contract  B.  should  afterwards, 
assign  to  a  third  person,  there  no  action  would  have  been  maintain- 
able at  law  before  the  Judicature  Acts  by  such  assignee  against  A., 
or  by  A.  against  such  assignee,  on  such  contract.  But  a  bill  in  equity- 
would  well  lie  by  either  of  them  against  the  other,  either  to  enforce- 
a  specific  execution  of  the  contract,  or  to  set  it  aside  in  the  same 
manner,  and  under  the  same  circumstances,  as  such  a  bill  would  lie 
between  the  immediate  parties  to  it  (d),  provided  the  original  contract- 
ing parties  were  parties  to  the  suit,  so  that  all  equities  could  be  properly 
adjusted.  We  all  know,  that  privity  of  contract  between  the  parties 
was,  in  general,  indispensable  to  a  suit  at  law;  but  courts  of  equity 
act  in  favour  of  all  persons  claiming  by  assignment  under  the  parties,, 
independent  of  any  such  privity  (e). 

§  784.  Upon  similar  principles,  if  a  person  has,  in  writing,  con- 
tracted to  sell  land,  and  afterwards  refuses  to  perform  his  contract, 
and  then  sells  the  land  to  a  purchaser  with  notice  of  the  contract,  the-- 
latter  will  be  compelled  to  perform  the  contract  of  his  vendor,  for  he- 
stands  upon  the  same  equity;  and  although  he  is  not  personally 
liable  on  the  contract,  yet  he  will  be  decreed  to  convey  the  land  in- 
the  same  manner  as  his  vendor  (/) ;  in  other  words,  he  is  treated  as  a 
trustee  of  the  first  vendee.  So,  if  a  power  is  reserved  in  a  marriage 
settlement,  for  a  feme  covert  to  dispose  of  her  separate  property,  real 
and  personal,  courts  of  equity  will  enforce  the  specific  performance  of 
it  in  favour  of  any  party  claiming  title  from  her  against  her  husband, 
although  at  law  it  might,  in  many  cases,  formerly  have  been  difficulfc 
to  prevent  the  latter  from  exercising  power  over  it  (g). 

§  785.  The  cases  of  contracts  to  grant  an  annuity  for  a  life  or  lives, 
and  to  settle  the  boundaries  between  contiguous  estates,  have  been, 
already  mentioned  as  proper  matters  for  an  action  for  specific  perform- 
ance (h).  So,  where  an  agreement  was  made  by  persons,  who  were 
presumptive  heirs  to  another  person,  to  divide  the  estate  equally 
between  them,  without  any  reference  to  any  will  which  might  be  made 
by  such  person,  it  was  held  valid;  and  that  it  should  be  specifically 
decreed  (i).     So,  contracts  to  invest  money  in  land,  and,  on  the  other 

(c)  See  ante,  §  §  99,  152  to  157,  161,  330,  331. 

(d)  Moxhay  v.  Inderwick,  11  Jur.  837;  Hacker  v.  Mid-Kent  By.,  11  Jur.  N.  S. 
634;  Fenwick  v.  Bulman,  L.  E.  9  Eq.  165;  Durham  Brothers  v.  Robertson,  [1898J 
1  Q.  B.  765.     See  HoU^n  v.  Hayn,  1  Mer.  47 ;  Shaw  v.  Foster,  L.  E.  5  H.  L.  321, 

(e)  Post,  §§  1040,  1057. 

(/)  Potter  V.  Sanders,  6  Hare  1.     See  McCreight  v.  Foster,  L.  E.  5  H.  L.  321. 
(g)  Power  v.  Bailey,  1  Ball  &  Beat.  49;  Fettiplace  v.  Gorges,  3  Bro.  C.  C.  8  ;• 
post,  §§  788,  789,  790.  (h)  Ante,  §§  722,  729,  730. 

(i)  Beckley  v.  Newland,  2  P.  Will.  182;  id.  698;  ante,  §  265. 


334  EQUITY     JURISPRUDENCE.  [CH.    XVII. 

hand,  to  turn  land  into  money,  have  been  held  proper  for  a  specific 
performance.  So,  a  contract  to  make  mutual  wills,  if  one  of  the 
parties  has  died,  having  made  a  will  according  to  the  agreement,  will 
be  decreed  in  equity  to  be  specifically  executed  out  of  assets  by  the 
surviving  party,  if  he  has  enjoyed  the  benefit  of  the  will  of  the  other 
party  (k).  So,  a  general  covenant  to  indemnify  a  party  for  the  pur- 
chase-money due  for  land,  upon  an  assignment  thereof  to  an  assignee, 
although  it  sounds  only  in  damages,  will  be  decreed  to  be  specifically 
performed  by  the  assignee,  upon  the  principle  of  quia  timet  (1). 

§  786.  Another  curious  case,  illustrative  of  the  extent  to  which 
courts  of  equity  wiU  go  to  enforce  a  specific  performance  of  contracts 
against  parties  and  privies  in  estate,  in  cases  where  a  fraudulent 
evasion  is  attempted,  has  been  propounded  and  acted  upon  in  the 
House  of  Lords.  If  a  person  covenants,  or  agrees,  or  in  any  other 
jnanner  validly  binds  himself  to  give  to  A.,  by  his  will,  as  much  pro- 
perty as  he  gives  to  any  other  child,  he  may  put  it  out  of  his  power 
±o  do  so,  by  giving  away  all  his  property  in  his  lifetime.  Or,  if  he 
binds  himself  to  give  to  A.  as  much  as  he  gives  to  B.  by  his  will,  he 
may,  in  his  lifetime  give  to  B.  what  he  pleases,  so  as,  by  his  will, 
he  shall  give  to  A.  as  much  as  he  gives  to  B.  But  then  the  gifts 
which  he  makes  in  his  lifetime,  to  B.  must  be  out  and  out.  For, 
if  to  defraud  or  defeat  the  obligation  which  he  has  thus  entered  into, 
he  gives  to  B.  any  property,  real  or  personal,  over  which  he  retains  a 
control,  or  in  which  he  reserves  an  interest  to  himself;  then,  in  order 
io  protect  the  agreement  or  obligation  which  he  has  entered  into,  and 
to  defeat  the  fraud  attempted  upon  that  agreement  or  obligation  and 
to  prevent  his  escaping,  as  it  were,  from  his  own  contract,  courts  of 
equity  will  treat  this  gift  to  B.  in  the  same  manner  as  if  it  were  purely 
-testamentary,  and  were  included  in  a  will;  and  the  subject-matter  of 
the  gift  will  be  brought  back  and  made  the  fund  out  of  which  to 
perform  the  obligation.  At  all  events,  it  will  be  made  the  measure 
for  calculating  and  ordering  the  performance  of,  and  dealing  with, 
-the  claim  arising  under  that  agreement  or  obligation  (m). 

§  787.  These  cases  are  sufficient  to  point  out  the  general  course 
of  remedial  justice  in  equity  in  all  cases  of  specific  performance, 
vs'hether  they  are  within  or  without  the  Statute  of  Frauds.  To  go 
over  all  the  doctrines  applicable  to  the  subject,  in  all  the  varieties, 
-would  require  a  discussion  wholly  incompatible  with  the  objects  of 
this  work.  The  principles  already  expounded  may  serve  to  explain 
the  true  nature  and  extent  of  the  jurisdiction  at  present  exercised, — 
a  jurisdiction  which  has  been  an  appropriate  theme  of  praise  on  all 
occasions  in  which  the  claims  of  courts  of  equity  to  public  favour  have 

(k)  Dufour  v.  Pereira,  cited  3  Ves.  412,  416. 
(l)  Ante,  §  730;  post,  §  849. 

(m)  Logan  v.  Wienholt,  7  Bligh  N.  S.  1;  1  CI.  &  P.  611.  See  In  re  Parkin 
mil  v.  Schwatz,  [1892]  3  Ch.  510. » 


§  786 — 789.]  SPECIFIC  performance.  335 

been  vindicated  by  their  friends  or  assailed  by  their  enemies.  In 
conclusion,  it  may,  however,  be  proper  to  remark,  that  all  the  cases 
for  a  specific  performance,  vchich  we  have  been  examining,  presuppose 
the  contract  to  be  between  competent  parties,  and  founded  upon  a 
valuable  and  meritorious  consideration ;  for  courts  of  equity  will  not, 
as  we  have  seen,  and  shall  presently  more  fully  see  (n),  carry  into 
specific  execution  any  merely  nude  pads  or  voluntary  agreements,  not 
founded  upon  some  valuable  or  meritorious  consideration ;  nor  between 
parties  not  sui  juris  or  competent  to  contract,  such  as  infants  (o) ;  nor 
(as  we  have  already  seen)  any  agreements  which  are  against  public 
policy,,  or  are  immoral,  or  which  involve  a  breach  of  trust  (p). 

§  788.  It  may  also  be  stated,  that,  in  general,  where  the  specific 
execution  of  a  contract  respecting  lands  will  be  decreed  between  the 
parties  it  will  be  decreed  between  all  persons  claiming  under  them  in 
privity  of  estate,  or  of  representation,  or  of  title,  unless  other  con- 
trolling equities  are  interposed  (q).  If  a  person  purchases  lands  with 
knowledge  of  a  prior  contract  to  convey  them,  he  is  (as  we  have  seen) 
affected  by  all  the  equities  which  affected  the  lands  in  the  hands  of 
the  vendor  (r).  The  lien  of  the  vendor  for  the  purchase-money  attaches 
to  them,  and  such  purchaser  may  be  compelled  either  to  pay  the 
purchase-money,  or  to  surrender  up  the  land,  or  to  have  it  sold  for 
the  benefit  of  the  vendor.  In  this  view,  the  remedy  of  the  vendor 
against  such  purchaser  may  be  said  to  be  in  rem,  rather  than  in 
personam.  On  the  other  hand,  if  the  vendee  under  such  a  contract 
conveys  the  same  to  a  third  person,  the  latter,  upon  paying  the  pur- 
chase-money, may  compel  the  vendor,  and  any  person  claiming  under 
him  in  privity,  or  as  a  purchaser  with  notice,  to  complete  the  contract 
and  convey  the  title  to  him  (s). 

§  789.  The  general  principle  upon  which  this  doctrine  proceeds,  is, 
that  from  the  time  of  the  contract  for  the  sale  of  the  land,  the  vendor, 
as  to  the  land,  becomes  a  trustee  for  the  vendee,  and  the  vendee,  as 
to  the  purchase-money,  a  trustee  for  the  vendor,  who  has  a  lien  upon 
the  land  therefor  (t).  And  every  subsequent  purchaser  from  either, 
with  notice,  becomes  subject  to  the  same  equities  as  the  party  would 
be  from  whom  he  purchased  (u).  In  cases  of  this  sort,  if  the  original 
vendee  dies,  after  having  sold  the  lands  to  a  third  person,  who  is  to 

(m)  Ante,  §  §  433,  706,  706a,  750,  769;  post,  §  §  793o,  973,  977,  987,  1040. 

(o)  Flight  V.  Bolland,  i  Euas.  298,  301;  ante,  §§  723,  751,  note. 

(p)  Toison  V.  Sheard,  5  Ch.  D.  19;  Morris,  Lim.  v.  Saxelby,'  [1916]  A.  C.  688. 

(g)  Smith  v.  Hibbard,  2  Dick.  730.  As  to  what  constitutes  notice  of  assignment, 
preventing  the  vendor  from  conveying  to  original  vendee,  see  McCreight  v.  Foster, 
L.  E.  5  Ch.  604;  L.  E.  5  H.  L.  321;  Crabtree  v.  Poole,  L.  E.  12  Bq.  13. 

(r)  Potter  v.  Sanders,  6  Hare  1. 

(s)  Winged  v.  Lefebury,  2  Eq.  Abr.  32,  pi.  43;  Taylor  v.  Stibbert,  2  Ves,  Jun. 
437;  Daniels  v.  Davison,  16  Ves.  249;  s.c.  17  Ves.  433;  ante,  §  784. 

(t)  Seton  V.  Slade,  7  Ves.  264;  Lysaght  v.  Edwards,  2  Ch.  D.  499;  Clarke  v. 
Ramuz,  [1891]  2  Q.  B.  546. 

(«)  Whitbread  £  Co.  v.  Watt,  [1902]  1  Ch.  835. 


336  EQUITY     JURISPRUDENCE.  [CH.    XVII. 

pay  the  purchase-money,  his  personal  representatives  are  entitled  to 
proceed  against  such  purchaser  in  equity,  to  indemnify  them,  and  to 
pay  the  purchase-money.  On  the  other  hand,  if  the  vendor  dies,  his. 
personal  representatives  may  enforce  the  lien  for  the  purchase-money 
against  the  land  in  the  possession  of  the  purchaser.  But  who,  as 
between  the  heirs  and  personal  representatives  of  the  vendee  or  a  sub- 
sequent purchaser,  is  to  bear  the  charge,  that  is,  whether  it  is  to  be 
borne  by  the  personal  estate  or  by  the  land  purchased,  is  a  matter 
properly  belonging  to  other  branches  of  equity  jurisdiction,  in  which 
the  marshalling  of  assets  is  considered  (x). 

§  790.  There  is  another  consideration  which  is  incident  to  this 
subject,  and  to  which  courts  of  equity  have  given  an  attention  and 
effect  proportioned  to  its  importance.  In  the  view  of  courts  of  law, 
contracts  respecting  lands,  or  other  things,  of  which  a  specific 
execution  will  be  decreed  in  equity,  are  considered  as  simple  executory 
agreements,  and  as  not  attaching  to  the  property  in  any  manner,  as 
an  incident,  or  as  a  present  or  future  charge.  But  courts  of  equity 
regard  them  in  a  very  different  light.  They  treat  them,  for  most 
purposes,  precisely  as  if  they  had  been  specifically  executed.  Thus, 
if  a  man  has  entered  into  a  valid  contract  for  the  purchase  of  land, 
he  is  treated  in  equity  as  the  equitable  owner  of  the  land,  and  the 
vendor  is  treated  as  the  owner  of  the  money.  The  purchaser  may 
devise  it  as  land,  even  before  the  conveyance  is  made,  and  it  passes; 
by  descent  to  his  heir  as  land  (j/).  The  vendor  is  deemed  in  equity  to 
stand  seised  of  it  for  the  benefit  of  the  purchaser;  and  the  trust  (as 
has  been  already  stated)  attaches  to  the  land,  so  as  to  bind  the  heir 
of  the  vendor,  and  every  one  claiming  under  him  as  a  purchaser,  with 
notice  of  the  trust  («).  The  heir  of  the  purchaser  may  come  into  equity 
and  insist  upon  a  specific  performance  of  the  contract.  On  the  other 
hand,  the  vendor  may  come  into  equity  for  a  specific  performance  of 
the  contract  on  the  other  side,  and  to  have  the  money  paid;  for  the 
remedy,  in  oases  of  specific  performance,  is  mutual  (a),  and  the 
purchase-money  is  treated  as  the  personal  estate  of  the  vendor,  and 
goes  as  such  to  his  personal  representatives.  In  like  manner,  land, 
articled  or  devised  to  be  sold,  and  turned  into  money,  is  reputed  as 
money,  and  money,  articled  or  bequeathed  to  be  invested  in  land,  has, 
in  equity,  many  of  the  qualities  of  real  estate,  and  is  descendible  and 
devisable  as  such,  according  to  the  rules  of  inheritance  in  other 
cases  (b).  So,  if  a  trustee  should  take  property  with  absolute  directions 
to  sell  and  convert  it  into  money,  there,  although  the  directions  were 
not  carried  into  effect  during  the  life  of  the  party  creating  the  trust, 

(x)  Roberts  v.  Marchant,  1  Ph.  370;  Hoddel  v.  Pugh,  33  Beav.  489. 
(y)  Seton  v.  Slade,  7  Ves.  264,  274;  post,  §  1212. 
(z)  Ante,  §§  788,  789. 

(a)  Ante,  §  723;  post,  §  §  796,  1212. 

(b)  Fletcher  v.  Ashbumer,  1  Bro.  C.  C.  496. 


§  790 — 793.]  SPECIFIC  pekformance.  337 

the  property  would  be  deemed  personalty.  But  if  the  charge  is  not 
absolute,  as  if  a  testator  should  charge  his  real  estate  for  the  payment 
of  his  debts,  it  will  retain  its  character  as  real  estate,  so  far  as  the 
charge  does  not  extend,  until  it  is  actually  converted  (c).  The  like  rule 
will  apply  to  the  case  of  real  estate,  conveyed  by  way  of  mortgage  with 
a  power  upon  default  of  payment  to  sell  the  premises,  and  pay  over 
the  residue  to  the  mortgagor,  after  payment  of  the  mortgage ;  there,  if 
no  sale  should  be  mad©  until  after  the  death  of  the  mortgagor,  it  will 
pass  by  his  devise  to  his  devisee,  or  to  his  heir,  as  real  estate,  and  not 
as  personalty  (if). 

§  791.  The  ground  of  this  latter  doctrine  is,  that  courts  of  equity 
will  regard  the  substance,  and  not  the  mere  form,  of  agreements  and 
other  instruments;  and  will  give  them  the  precise  effect  which  the 
parties  intended,  in  furtherance  of  that  intention.  It  is  presumed 
that  the  parties,  in  directing  money  to  be  invested  in  land,  or  land 
to  be  turned  into  money,  intend  that  the  property  shall  assume  the 
very  character  of  the  property  into  which  it  is  to  be  converted,  what- 
ever may  be  the  manner  in  which  that  direction  is  given.  And  no 
one  will  deny  that  it  is  competent,  at  lea^t  in  a  court  of  equity,  for 
the  owner  of  the  fund  to  make  land  money,  or  money  land,  at  his 
sole  will  and  pleasure. 

§  792.  But,  although  these  are  the  general  principles  adopted  by 
courts  of  equity,  yet  they  are  not  without  limitations  and  qualifica- 
tions, standing  upon  peculiar  reasons,  but  still  consistent  with  those 
principles.  Thus  (as  we  have  seen),  nothing  is  looked  upon  in  equity, 
as  done,  but  what  ought  to  be  done;  not  what  might  have  been 
done.  Nor  will  equity  consider  things  as  thus  done  in  favour  of 
everybody;  but  only  in  favour  of  those  who  have  a  right  to  pray  that 
they  might  be  done. 

§  793.  Upon  the  ground  of  intention,  also,  if  it  can  be  collected 
from  any  present  or  subsequent  acts  of  the  parties,  that  it  is  their 
intention,  notwithstanding  any  will,  or  deed,  or  other  instrument, 
that  the  property  shall  retain  its  present  character,  either  in  whole 
or  in  part,  courts  of  equity  will  act  upon  that  intention  (e).  Thus,  for 
instance,  if  money  is  directed  by  will,  or  other  instrument,  to  be  laid 
out  in  land,  or  land  is  directed  to  be  turned  into  money,  the  party 
entitled  to  the  beneficial  interest  may  in  either  case,  if  he  elects  so 
to  do,  prevent  any  conversion  of  the  property  from  its  present  state, 
and  hold  it  as  it  is.  And  this  election  he  may  make,  as  well  by  acts 
or  declarations,  clearly  indicating  a  determination  to  that  effect,  as 
by  an  application  to  a  court  of  equity  (/).    It  is  this  election,  however, 

(c)  In  re  GoswelVs  Trusts,  [1915]  2  Ch.  106. 

(d)  Bourne  v.  Bourne,  2  Hare,  38. 

(e)  Ackroyd  v.  Smithson,  1  Bro.  C.  C.  503;  Wheldale  v.  Partridge,  8  Ves.  227; 
Mutlow  V.  Bigg,  1  Ch.  D.  385. 

(/)  Seeley  v.  Jago,  1  P.  Will.  389,  where  Lord  Chancellor  Cowper  said,  "  It   is 

E.J.  22 


338  EQUITY    JURISPRUDENCE.  [CH.    XVII. 

and  not  the  mere  right  to  make  it,  which  changes  the  character  of  the 
estate,  so  as  to  make  it  real  or  personal  at  the  will  of  the  party  entitled 
to  the  whole  beneficial  interest.  If  he  does  not  make  such  an  election 
in  time  to  stamp  the  property  with  a  character  different  from  that 
which  the  will  or  other  instrument  gives  it,  the  latter  character 
accompanies  it,  with  all  its  legal  consequences,  into  the  hands  of 
those  who  are  entitled  to  it  in  that  character.  So  that,  in  case  of 
the  death  of  the  party  thus  beneficially  entitled,  without  having 
made  an  election,  the  property  will  pass  to  his  heirs,  or  personal  repre- 
sentatives, in  the  same  manner  it  would  have  done  if  the  trust  had 
been  executed  and  the  conversion  had  been  actually  made  in  his 
lifetime  (g). 

§  793a.  We  have  already  had  occasion  to  remark,  throughout  the 
whole  of  the  discussion,  respecting  a-ctions  for  specific  performance  of 
contracts,  that  it  has  been  constantly  supposed  that  the  contract  was 
one  founded  upon  a  valuable  consideration  in  the  contemplation  of 
law  (h).  In  respect  to  voluntary  contracts,  or  such  as  are  not  founded 
in  a  valuable  consideration,  we  have  already  had  occasion  to  state, 
that  courts  of  equity  do  not  interfere  to  enforce  them,  either  as 
against  the  party  himself  or  as  against  other  volunteers  claiming 
under  him  (i).  Thus,  for  example,  if  a  party  should  enter  into  a 
voluntary  agreement  to  transfer  stock  to  another,  or  to  give  him  a 
sum  of  money,  or  to  convey  to  him  a  certain  real  estate,  courts  of 
equity  would  not  assist  in.  enforcing  the  agreement,  either  against 
the  party  entering  into  the  agreement,  or  against  his  personal  repre- 
sentatives; for  the  party  contracted  with  is  a  mere  volunteer.  The 
same  rule  is  applied  to  imperfect  gifts,  inter  vivos,  to  imperfect 
volimtary  assignments  of  debts  and  other  property,  to  voluntary 
executory  trusts,  and  to  voluntary  defective  conveyances  (fe). 

vain  to  lay  out  this  money  on  land  for  B.  and  C,  when  the  next  moment  they  may 
turn  it  into  money;  and  equity,  like  nature,  does  nothing  in  vain." 

ig)  Smith  v.  Claxton,  4  Madd.  484;  Jessop  v.  Waison,  1  M.  &  K.  665;  In  re 
Bicherson,  Scales  v.  Heyhoe,  [1891]  1  Ch.  379. 

(h)  Ante,  §  787. 

(t)  Ante,  §§  706,  706a,  787;  Tate  v.  HilbeH,  2  Ves.  Jun.  112;  Jeffreys  v. 
Jeffreys,  1  Cr.  &  Phil.  136,  141;  Meelc  v.  Kettlewell,  1  Phil.  342. 

(&)  Ellison  V.  Ellison,  6  Vea.  662;  Ex  parte  Pye,  18  Ves.  149;  Edwards  v.  Jones, 
1  Myl.  &  Cr.  226 ;  Weale  v.  Ollive,  17  Beav.  252 ;  Green  v.  Paberson,  32  Ch.  D.  95. 


§  793a — 795.]      compensation  and  damages.  339 


CHAPTER    XVIII. 


COMPENSATION    AND    DAMAGES. 


§  794.  It  is  in  cases  of  bills  brought  for  a  specific  performance  that 
questions  principally  (although  not  exclusively)  arise,  as  to  com- 
pensation and  damages  being  awarded  by  courts  of  equity;  and 
therefore  it  is  convenient  in  this  place  to  consider  the  nature  and 
extent  of  the  jurisdiction  exercised  by  courts  of  equity  as  to  com- 
pensation and  damages  (a).  It  may  be  stated  as  a  general  proposition, 
that,  for  breaches  of  contract,  and  other  wrongs  and  injuries,  cognizable 
at  law,  courts  of  equity  did  not  entertain  jurisdiction  to  give  redress 
by  way  of  compensation  or  damages,  where  these  constituted  the  sole 
objects  of  the  bill  (fa).  For,  wherever  the  matter  of  the  bill  was  merely 
for  damages,  and  there  was  a  perfect  remedy  therefor  at  law,  it  was 
considered  far  better  that  they  should  be  ascertained  by  a  jury  than 
by  the  conscience  of  an  equity  judge  (o).  And  indeed  the  just 
foundation  of  equitable  jurisdiction  failed  in  all  such  cases,  as  there 
was  a  plain,  complete,  and  adequate  remedy  at  law.  Compensation  or 
damages  could  be  and  were  decreed  in  equity  but  only  as  incidental  to 
other  relief  sought  by  the  bill  and  granted  by  the  court;  or  where 
there  is  no  adequate  remedy  at  law;  or  where  some  peculiar  equity 
intervened  (d).  Thus,  for  example,  if,  pending  a  suit  for  a  specific 
performance  of  an  agreement  for  a  demise  of  quarries,  a  part  of  the 
subject-matter  of  the  demise  is  abstracted,  compensation  might  under 
the  old  practice  have  been  obtained  therefor  by  a  supplemental  bill  (e). 
§  795.  The  mode  by  which  such  compensation  or  damages  used  to 
be  ascertained  was  either  by  a  reference  to  a  master,  or  by  directing 
an  issue,  quantum  damnificatus ,  which  was  tried  by  a  jury.  The 
latter  used  to  be  almost  the  invariable  course  in  former  times,  in  all 
cases  where  the  compensation  was  not  extremely  clear  as  to  its 
elements  and  amounts.     But  the  same  inquiries  may  be  had  before  a 

(a)  The  same  principle  of  compensation  and  damages  is  applied  in  granting  relief 
against  penalties  and  forfeitures,  as  will  be  seen  in  a  future  page. 

(b)  Higginbotham  v.  Hawkins,  L.  E.  7  Ch.  676;  Morgan  v.  Lariviire,  L.  R.  7 
H.  L.  423. 

(c)  Gilb.  For.  Eom.  ch.  12,  p.  219;  CliffoTd   v.  Brooke,  13  Ves.  130,  131,  134; 
Blore  V.  Sutton,  3  Meriv.  247,  248;  Newham  v.  May,  13  Price,  749,  752. 

id)  Newha.m  v.  May,  13  Price,  732;  Cligord  v.  Turrell,  1  Y.  &  C.  Oh.  138;  on 
appeal,  14  L.  J.  Ch.  390. 

(e)  Nelson  v.  Bridges,  2  Beav.  239. 


340  EQUITY     JURISPRUDENCE.  [CH.   XVIII- 

master;  and  in  cases  where  such  inquiries  do  not  involve  much 
complexity  of  facts  or  amounts,  this  course  is  now  often  adopted  (/). 
Or  the  damages  may  be  assessed  by  the  court  at  the  hearing,  and  if 
the  plaintiff  is  not  rea-dy  with  his  evidence,  the  trial  has  been  adjourned 
to  give  him  time  to  obtain  the  necessary  evidence  (g). 

§  796.  Wherever  compensation  or  damages  are  incidental  to  other 
relief,  as,  for  instance,  where  a  specific  performance  is  decreed  upon 
the  application  of  either  party,  with  an  allowance  to  be  made  for 
any  deficiency  as  to  the  quantity,  quality,  or  description  of  the 
property,  or  for  any  delay  in  performing  the  contract;  there,  it 
eeems  clear,  that  the  jurisdiction  properly  attaches  in  equity;  for 
it  flows,  and  is  inseparable  from  the  proper  relief  (h).  So,  where  an 
action  is  brought  by  the  vendor  against  the  vendee  for  specific 
performance  of  the  contract  of  sale,  and  of  payment  of  the  purchase- 
money,  if  the  judgment  is  for  a  specific  performance,  equity  will 
decree  the  payment  of  the  purchase-money  also,  as  the  remedies  of  the 
parties  must  be  mutual,  although  the  vendor  might  in  many  cases 
have  a  good  remedy  at  law  for  the  purchase-money  (i).  The  learned 
author  then  discussed  certain  doubts  that  had  been  expressed  by  Lord 
Eldon,  Lord  Eedesdale,  and  Sir  William  Grant.  M.E.,  which  after  his 
day  had  been  set  at  rest  by  subsequent  decisions  to  which  reference 
has  already  been  made  in  this  chapter,  and  which  have  long  since 
possessed  but  an  historical  interest  by  reason  of  legislation. 

.  §  796a,.  By  the  Chancery  Amendment  Act,  1858,  still  usually 
referred  to  as  Lord  Cairns'  Act  (21  &  22  Vict.  c.  27),  s.  2,  it  was 
enacted  that  in  all  cases  in  which  the  court  had  jurisdiction  to 
en,tertain  an  application  for  an  injunction  against  a  breach  of  any 
covenant,  contract,  or  agreement,  or  against  the  commission  or 
continuance  of  any  wrongful  act,  or  for  the  specific  performance  of 
any  covenant,  contract,  or  agreement,  in  all  these  cases  it  should  be 
lawful  for  the  same  court,  if  it  should  think  fit,  to  award  damages  to 
the  party  injured,  either  in  addition  to,  or  in  substitution  for,  such 
injunction,  and  such  damages  might  be  assessed  in  such  manner  as  the 
court  should  direct.  This  statute  has  been  repealed  but  with  the 
saving  of  "  any  jurisdiction  or  principle,  or  rule  of  law  or  equity 
established  or  confirmed  "  by  it,  by  the  Statute  Law  Eevision  Act, 
1881  (44  &  45  Vict.  c.  59).  The  statute  does  not  confer  aji  original 
jurisdiction  to  award  damages,  and  if  the  right  to  specific  performance 

(/)  Gilb.  For.  Bom.  219;  Denton  v.  Stewart,  1  Cox  258;  Greenaway  v.  Adams, 
12  Ves.  401,  402;  Todd  v.  Gee,  17  Ves.  278,  279. 

(g)  Higginbotham  v.  Hawkins,  L.  E.  7  Ch.  676;  Jacques  v.  Millar,  6  Ch.  D. 
153;  Wesley  v.  Walker,  26  W.  E.  368.  Lord  Justice  Pry  recommends  in  his  book  on 
Specific  Performance,  2nd  edit.  p.  555,  that  this  last  course  should  whenever  prac- 
ticable be  adopted. 

(h)  Ante,  §§  709,  711. 

(j)  Withy  V.  Cottle,  1  Sim.  &  Stu.  174 ;  Adderley  v.  Dixon,  1  Sim.  &  Stu.  607 ; 
Clifford  V.  Turrell,  1  Y.  &  C.  Ch.  138,  affirmed  14  L.  J.  Ch.  890. 


§  796 — 7966.]  compensatiok  and  damages.  341 

has  been  lost,  as  by  laches,  the  right  to  damages  under  the  Act  falls 
with  it  (fe). 

§  796b.  The  Supreme  Court  established  by  the  Judicature  Act, 
1873  (36  &  37  Viet.  c.  66),  is,  as  has  been  already  stated  (I),  a  court 
of  complete  jurisdiction,  and  where  a  party  would  have  failed  to 
establish  his  claim  to  relief  in  equity  and  have  been  awarded  damages 
in  a  court  of  law,  the  court  should  at  once  proceed  to  give  him  his 
alternative  remedy  (m). 

(/c)  Ferguson  v.  Wilson,  L.  E.  2  Ch.  77;  Lavery  v.  Pursell,  39  Ch.  D.  508. 

(1)  Ante,  §   48. 

(m)  Tamplin  v.  James,  15  Ch.  D.  215.  This  decision  has  sometimes  been  over- 
looked in  practice;  e.g.,  Lavery  v.  Pursell,  39  Ch.  D.  508;  Scott  v.  Alvarez,  [1915] 
2  Ch.  603. 


342  INTERPLEADER.  [CH.  XIX. 


CHAPTER  XIX. 


INTERPLEADER. 


§  800.  With  these  remarks  on  the  jurisdiction  of  courts  of  equity,  as 
to  specific  performance,  and  competisation  and  damages,  we  may 
dismiss  the  subject,  and  proceed  to  another  head  of  concurrent 
equitable  jurisdiction,  arising  principally  from  the  peculiar  remedies 
administered  therein;  and  that  is,  Interpleader.  A  learned  author 
has  treated  this,  and  one  other  branch  of  equity  jurisprudence  (that 
of  interference  in  cases  of  irreparable  mischief  and  injury),  as  not 
strictly  belonging  either  to  the  concurrent,  or  the  exclusive,  or  the 
auxiliary  jurisdiction  of  courts  of  equity.  Perhaps,  in  strictness,  this 
may  be  correct,  but  it  more  nearly  falls  within  the  first  than  within 
either  of  the  others  (a).  Having  regard  to  the  enlarged  jurisdiction 
of  the  Supreme  Cotirt,  it  will  be  unnecessary  to  discuss  the  limits 
within  which  courts  of  equity  entertained  bills  of  interpleader  with  the 
same  particularity  as  the  learned  author. 

§  801.  The  remedy  by  interpleader  was  not  unknown  to  the 
common  law ;  but  it  had  a  very  narrow  range  of  purpose  and  application. 
The  interpleader  at  law  was  where  there  was  a  joint  bailment  by 
both  claimants  (b).  It  was  a  common  practice,  in  the  early  times  of 
the  English  law,  for  parties,  by  joint  agreement,  to  deposit  title-deeds, 
and  other  deeds  and  things,  in  the  hands  of  third  persons,  to  await 
the  performance  of  covenants,  or  the  doing  of  some  other  act,  upon 
which  they  were  to  be  redelivered  to  one  or  the  other  of  the  parties. 
It  often  happened,  under  such  circumstances,  that  questions  subse- 
quently arose,  whether  the  act  had  been  properly  performed,  or  the 
terms  strictly  complied  with;  and  if,  when  either  party  supposed  the 
crisis,  on  which  the  deed  or  thing  was  demandable,  to  have  arrived, 
any  dispute  existed,  as  to  the  right,  or  as  to  the  fact,  an  action  of 
detinue  (the  appropriate  action  for  such  a  case)  became  inevitable. 
Now,  by  the  common  law,  in  such  a  case,  the  depositary  might,  if 
such  an  action  was  brought  against  him,  plead  for  his  protection  the 
fact  of  such  delivery  or  bailment  upon  certain  conditions,  and  his 
willingness  to  deliver  the  property  to  the  party  entitled  to  it,  and 
his   ignorance    whether   the    condition   were    performed    or   not;    and 

(a)  Cooper,  Eq.  PI.  Introd.  p.  33. 

(b)  Cramshay  v.  Thornton,  2  Myl.  &  Cr.  1,  21. 


§    800 — 805.]  INTERPLEADER.  343 

thereupon  he  might  pray,  that  a  process  of  gamishment  (that  is,  a 
process  of  monition  or  notice)  might  iss.ue  to  compel  the  other  depositor 
to  appear  and  become  a  defendant  in  his  stead.  This  was  properly 
called  the  process  of  gamishment. 

§  802.  The  process  of  interpleader  was  very  nearly  allied  to  that 
of  garnishment;  and  it  arose,  when  both  of  the  parties,  who  concurred 
in  a  joint  bailment,  brought  several  actions  of  detinue  against  the 
depositary,  under  like  circumstances,  for  a  redelivery  of  the  thing 
deposited.  The  depositary  might  then  plead  the  facts  of  the  case, 
and  pray  that  the  plaintiffs  in  the  several  actions  might  interplead 
with  each  other.  This  was  properly  the  process  of  interpleader.  The 
proceeding  seems  highly  reasonable  in  itself,  to  prevent  the  depositary 
from  being  harassed  by  suits  in  which  he  had  no  interest. 

§  803.  The  same  process  was  also  applied  to  cases  where  the  thing 
in  controversy  came  to  the  possession  of  the  depositary  by  finding, 
and  he  was  sued  in  detinue  by  different  persons,  each  claiming  to  be 
the  owner  in  severalty.  And  it  seems  also  to  have  been  applied  to 
cases  of  a  bailment  by  A.,  to  the  depositary  to  rebail  to  B. ;  where 
both  A.  and  B.  sued  the  depositary  in  detinue.  But  if  there  was  no 
privity  between  the  parties,  but  each  plaintiff  coimted  upon  a  several 
independent  bailment  against  the  depositary,  there,  it  was  said,  the 
plaintiffs  were  not  compellable  to  interplead,  for  it  was  the  depositary's 
own  folly,  and  he  must  abide  by  it  (c). 

§  804.  The  remedy,  however,  such  as  it  was,  was  principally 
confined  to  actions  of  detinue,  although  it  was  applied  to  a  few  other 
cases,  such  as  writs  of  quare  impedit,  and  writs  of  right  of  ward. 
But  it  was  not  allowed  to  any  personal  action  except  detinue;  and 
then  only,  as  we  have  seen,  when  it  was  founded  either  in  privity  of 
contract,  or  upon  a  finding. 

§  805.  From  this  description  of  the  process  of  interpleader  at  the 
common  law,  it  is  obvious  that  it  could  afford  a  very  imperfect  remedy 
in  a  great  variety  of  cases.  Indeed,  as  the  action  of  detinue  was 
subsequently  supplanted  by  the  action  of  trover  (in  which  interpleader 
did  not  lie  at  the  common  law),  little  or  no  practical  advantage  could 
be  derived  from  it  in  modem  times  (d).  The  only  remedy,  therefore, 
for  the  relief  of  a  person  sued,  or  in  danger  of  being  sued,  by  several 
claimants  of  the  same  property,  was  that  of  filing  a  bill  to  compel 
them,  by  the  authority  of  a  court  of  equity,  to  interplead,  either  at  law 
or  in  equity  (e). 

(c)  Beeves,  Hist,  of  the  English  Law,  ch.  23,  pp.  453,  454.  See  Rich  v.  Aldred, 
6  Mod.  216;  Story  on  Bailments,  §§  111,  112.  (d)  Cooper,  Eq.  PI.  47,  48,  49. 

(e)  The  reader  is  referred  to  the  able  Eeport  of  the  Common  Law  Commissioners 
made  to  Parliament,  and  printed  by  the  order  of  the  House  of  Commons,  in  March, 
1880  (p.  24),  for  further  information  on  this  subject.  Mr.  Reeves  has,  in  his  History 
of  the  English  Law  (vol.  iii.  pp.  448  to  455),  brought  together  some  of  the  cases  of 
difficulty  in  the  proceeding  of  interpleader  at  the  common  law.  They  abundantly 
show  the  inadequacy  of  the  remedy. 


344  EQUITY  JURISPRUDENCE.  [CH.    XIX. 

§  806.  It  is  observable,  that  the  jurisdiction  of  courts  of  equity,  to 
compel  an  interpleader,  followed,  to  some  extent,  the  analogies  of  the 
law  (/).  It  was  properly  applied  to  cases  where  two  or  more  persons 
severally  claimed  the  same  thing  under  different  titles,  or  in  separate 
interests,  from  another  person,  who,  not  asserting  any  title  or  interest 
therein  himself,  and  not  knowing  to  which  of  the  claimants  he  ought 
of  right  to  render  the  debt  or  duty  claimed,  or  to  deliver  the  property 
in  his  custody,  was  either  molested  by  an  action  or  actions  brought 
against  him,  or  feared  that  he  might  suffer  injury  from  the  conflicting 
claims  of  the  parties.  He,  therefore,  applied  to  a  court  of  equity  to 
protect  him,  not  only  from  being  compelled  to  pay  or  deliver  the 
thing  claimed  to  both  the  claimants,  but  also  from  the  vexation 
attending  upon  the  suits,  which  were,  or  possibly  might  be,  instituted 
against  him  (g). 

§  807.  The  true  origin  of  the  jurisdiction  is,  that  there  either  was 
no  remedy  at  all  at  law,  or  the  legal  remedy  was  inadequate  in  the 
given  case.  If  an  interpleader  at  law  would  lie  in  the  case,  and  it 
would  be  effectual  for  the  protection  of  the  party,  then  the  jurisdiction 
in  equity  failed.  So,  if  the  party  himself,  seeking  the  aid  of  the  court 
by  bill  of  interpleader,  claimed  an  interest  in  the  subject-matter,  as 
well  as  the  other  parties,  there  was  no  foundation  for  the  exercise 
of  the  jurisdiction;  for,  in  such  a  case,  he  ha-d  other  appropriate 
remedies.  So,  if  the  plaintiff  had  lent  himself  in  any  way  to  further 
the  claims  of  either  party  to  the  fund  in  controversy,  or  to  aid  one  in 
obtaining  possession  thereof,  to  the  exclusion  of  the  other,  he  could 
obtain  no  relief  by  this  bill.  For  a  bill  of  interpleader  always  supposed 
that  the  plaintiff  was  the  mere  holder  of  a  stake;  which  was  equally 
contested  by  the  other  parties,  and  as  to  which  the  plaintiff  stood 
wholly  indifferent  between  them;  so  that  when  their  respective  rights 
were  settled,  nothing  further  remained  in  controversy.  But  that 
could  never  be  truly  said  to  be  the  case,  when  the  plaintiff  asserted  a 
personal  right  or  claim,  which  remained  to  be  settled  between  him 
and  the  other  parties ;  or  the  plaintiff  sought  relief  in  the  premises 
against  either  of  them  {h).  The  true  ground  upon  which  the  plaintiff 
came  into  equity  was,  that,  claiming  no  right  in  the  subject-matter 
himself,  he  was,  or  might  be,  vexed  by  having  two  legal  or  other 
processes,  in  the  names  of  different  persons,  going  on  against  him  at 
the  same  time.  He  came,  therefore,  into  court  upon  the  most  obvious 
equity,  to  insist  that  those  persons,  claiming  that  to  which  he  made 
no  claim,  should  settle  that  contest  among  themselves,  and  not  with 
him  or  at  his  expense  and  hazard  (;).     If  their  respective  titles  were 

(/)  See  Metcalf  v.  Hervey,  1  Ves.  Sen.  249. 

ig)  Moore  v.  Usher,  7  Sim.  383;  Grawshay  v.  Thornton,  2  M.  &  Cr.  1;  Glyn  v. 
Duesbury,  11  Sim.  139. 

(h)  Mitchell  v.  Hayne,  2  Sm.  &  Stu.  63 ;  Moore  v.  Usher,  7  Sm.  383. 
(i)  Langston  v.  Boylston,  2  Yea.  Jun.  109. 


§    806 812.]  INTERPLEADER.  345 

doubtful,  there  was  so  much  the  more  reason  why  he  should  not  to 
harassed  by  suits  to  ascertain  and  fix  them;  and  unless,  under  such 
circumstances,  courts  of  equity  afforded  him  protection,  he  would,  in 
almost  every  event,  be  a  sufferer,  however  innocent  and  honourable 
his  own  conduct  may  have  been. 

§  808.  In  regard  to  bills  of  interpleader,  it  was  not  necessary,  to 
entitle  the  party  to  come  into  equity,  that  the  titles  of  the  claimants 
should  be  both  purely  legal  or  both  purely  equitable;  it  was  sufficient 
to  found  the  jurisdiction  that  one  title  was  legal  and  the  other  was 
equitable  (k).  Indeed,  where  one  of  the  claims  was  purely  equitable, 
it  seemed  indispensable  to  come  into  equity;  for,  in  such  a  case,  there 
could  be  no  interpleader  awarded  at  law  (l).  Thus,  for  instance,  if  a 
debt  or  other  claim  had  been  assigned,  and  a  controversy  arose  between 
the  assignor  and  the  assignee  respecting  the  title,  a  bill  of  interpleader 
might  have  been  brought  by  the  debtor,  to  have  the  point  settled,  to 
whom  he  should  pay  (-m).  Where  the  title  of  all  the  claimants  was 
purely  equitable,  there  was  a  still  broader  ground  to  entertain  bills  in 
the  nature  of  a  bill  of  interpleader;  for  courts  of  equity,  in  virtue  of 
their  general  jurisdiction,  might  grant  relief  in  such  cases.  Nor  was  it 
necessary  (as  may  be  gathered  from  what  has  been  already  said)  that 
a  suit  should  have  been  actually  commenced  by  either  or  both  of  the 
conflicting  claimants,  against  the  party,  either  at  law  or  in  equity.  It 
was  sufficient  that  a  claim  was  made  against  him,  and  that  he  was  in 
danger  of  being  molested  by  conflicting  rights  (n). 

§  809.  But  in  every  case  of  a  bill  of  interpleader,  the  court,  in 
order  to  prevent  its  being  made  the  instrument  of  delay  or  of  collusion 
with  one  of  the  parties,  required  that  an  affidavit  of  the  plaintiff 
should  be  made,  that  there  was  no  collusion  between  him  and  any  of 
the  other  parties;  and,  also,  if  it  was  a  case  of  money  due  by  him, 
that  he  should  bring  the  money  into  court;  or,  at  least,  should  offer  to 
do  so  by  the  bill  (o).  An  affidavit  of  no  collusion  was  conclusive,  the 
question  could  only  be  raised  at  the  hearing,  but  where  charged,  an 
undertaking  in  damages  by  the  plaintiff  might  be  required  (p). 

§  812.  And  here  it  may  be  proper  to  state,  that,  in  the  cases  of 
tenants  seeking  relief  by  bill  of  interpleader,  it  must  have  appeared 
that  the  persons  claiming  the  same  rent,  claimed  in  privity  of  contract 
or  tenure,  as  in  the  case  of  a  mortgagor  and  mortgagee,  or  of  a  trustee 

(fe)  Pons  v.  Gilham,  9  Coop.  Eq.  56;  Morgan  v.  Marsack,  2  Meriv.  107. 

(I)  Duke  of  Bolton  v.  Williams,  i  Bro.  C.  C.  309;  s.c.  2  Ves.  Jun.  ]51,  152. 

(m)  See  Wright  v.  Ward,  i  Buss.  215 ;  Lowndes  v.  Cornford,  18  Ves.  299. 

(n)  Langston  v.  Boylston,  2  Ves.  Jun.  107;  Morgan  v.  Marsack,  2  Meriv.  107; 
Fairbrother  v.  Prattent,  5  Price,  303;  s.c.  Dan.  64,  70;  Jones  v.  Thomas,  2  Sm.  & 
G.  186. 

(o)  Dungey  v.  Angove,  3  Bro.  C.  C.  36 ;  2  Ves.  Jun.  310;  Langston  v.  Boylston, 
2  Ves.  Jun.  109,  110;  Warington  v.  Wheatstone,  Jac.  202. 

(p)  Dungey  v.  Angove,  1  Bro.  C.  C.  36 ;  2  Ves.  Jun.  310;  Manby  v.  Robinson, 
L.  E.  4  Ch.  347. 


346  EQUITY  JURISPRUDENCE.  [CH.    XIX. 

and  cestui  que  trust ;  or,  where  the  estate  is  settled  to  the  separate  use 
of  a  married  woman,  of  which  the  tenant  has  notice,  and  the  husband 
had  been  in  receipt  of  the  rent.  In  cases  of  this  sort,  the  tenant  does 
not  dispute  the  title  of  his  landlord;  but  he  affirms  that  title,  and  the 
tenure  and  contract,  by  which  the  rent  is  payable;  and  puts  himself 
upon  the  mere  uncertainty  of  the  person  to  whom  he  is  to  pay  the 
rent.  But  if  a  claim  to  the  rent  should  be  set  up  by  a  mere  stranger, 
under  a  title  paramount,  and  not  in  privity  of  contract  or  tenure  (as, 
if  the  stranger  should  bring  ejectment  against  the  tenant),  there 
the  tenant  cannot  compel  his  landlord  to  interplead  with  such  a 
stranger;  for  it  is  not  a  demand  of  the  same  nature,  or  in  the  same 
right.  The  stranger  cannot  demand  the  rent  as  such,  but  he  has,  if 
successful  in  the  ejectment,  only  a  right  to  damages  for  use  and 
occupation;  whereas  the  landlord  claims  the  rent,  as  such,  in  privity 
of  contract,  tenure,  and  title.  The  debt  or  duty  is  not  the  same ;  and 
interpleader  lies  only,  when  it  is  so,  or  in  privity  (g).  And  the  same 
principle  was  applied  where  the  plaintiff  had  attorned  in  respect  of 
goods  (r). 

§  813.  These  last  cases  may  serve  as  proofs  of  the  truth  of  the- 
remark  already  made,  that  equity,  in. bills  of  interpleader,  followed  to 
some  extent  the  analogies  of  the  law;  for  we  have  seen  that  privity 
of  contract  was  generally  necessary  to  found  a  jurisdiction  at  law  in 
cases  of  bailment  upon  a  writ  of  interpleader.  But  in  many  other 
respects,  the  bill  of  interpleader  in  equity  differed  from  that  of  law. 
In  all  the  cases  above  mentioned  no  interpleader  would  lie  at  law ; 
for  they  involved  no  mutual  or  joint  bailment,  and  no  claim,  founded 
upon  a  finding  by  the  plaintiff. 

§  814.  What  the  true  limit  of  the  jurisdiction  upon  bills  of  inter- 
pleader was,  in  cases  where  di^erent  persons  claimed  the  same 
specific  chattel  or  thing  from  a  third  person  upon  the  ground  of  title 
as  owners,  is  not  a  matter,  perhaps,  settled  by  the  authorities  in 
a  very  precise  manner.  In  general,  this  remedy  could  be  claimed 
by  persons  standing  in  the  situation  of  mere  stakeholders,  such  as 
auctioneers,  agents,  factors,  and  consignees,  between  whom  and  the 
different  claimants  there  was  a  privity  of  contract  or  duty  (s) ;  but 
the  agent  might  be  precluded  from  setting  up  the  title  of  others  by 
distinctly  recognizing  the  title  of  one  (t).  But  this  qualification  has 
ceased  to  exist  by  force  of  the  statutory  amendment  of  the  law  (u). 
There  does  not  seem  any  difficulty,  upon  principle,  in  maintaining  that 
a  bill  of  interpleader  may  be  brought  by  a  stakeholder  against  three 

(g)  Dungey  v.  Angove,  1  Bro.  C.  C.  36;  2  Ves.  Jun.  310,  312;  Homan  v.  Moore, 
4  Price,  1. 

(r)  Grawshay  v.  Thornton,  2  M.  &  Cr.  1.     See  Nicholson  v.  Knowles,  5  Madd.  47. 
(s)  Fairbrother  v.  Prattent,  Dan.  64;  Hoggart  v.  Cutis,  Or.  &  P.  197. 
(t)  Nicholson  v.  Knowles,  5  Madd.  47;  Grawshay  v.  Thornton,  2  M.  &  Cr.  1. 
(«)  Attenborough  v.  St.  Katharine's  Doch  Go.,  3  C.  P.  D.  450. 


§    813 8246.]  INTERPLEADER.  347 

persons,  each  claiming,  in  a  distinct  and  different  right,  the  same 
property,  as  well  as  against  two  persons  claiming  in  the  same 
manner  (x). 

§  821.  A  bill  of  interpleader  could  not  be  maintained  by  any  person 
who  did  not  admit  a  title  in  two  claimants,  and  did  not  also  show 
two  claimants  in  existence  capable  of  interpleading  (y).  Thus,  a 
sheriff,  who  seized  goods  in  execution,  could  not  sue  a  bill  of  inter- 
pleader upon  account  of  adverse  claims  existing  to  the  property ;  for,  as 
to  one  of  the  defendants,  he  necessarily  admitted  himself  to  be  a 
wrongdoer  («).  It  was  essential,  also,  in  every  bill  of  interpleader,  that 
the  plaintiff  should  show  that  each  of  the  defendants  claimed  a  right, 
and  such  a  right  as  they  might  interplead  for;  for  otherwise  both  the 
defendants  might  demur;  the  one,  because  the  bill  showed  no  claim  of 
right  against  him;  the  other,  because  the  bill,  showing  no  claim  of 
right  in  the  co-defendant,  showed  no  cause  of  interpleader  (a). 

§  824.  But  although  a  bill  of  interpleader,  strictly  so  called,  lay 
only  where  the  party  applying  claimed  no  interest  in  the  subject-* 
matter ;  yet  there  were  many  cases  where  a  bill,  in  the  nature  of  a  bill 
of  interpleader,  would  lie  by  a  party  in  interest,  to  ascertain  and 
establish  his  own  rights,  where  there  are  other  conflicting  rights 
between  third  persons  (6).  In  these  cases,  the  plaintiff  sought  relief 
for  himself,  whereas  in  an  interpleading  bill,  strictly  so  called,  the 
plaintiff  only  asked  that  he  might  be  at  liberty  to  pay  the  money 
or  deliver  the  property  to  the  party  to  whom  it  of  right  belonged,  and 
might,  thereafter,  be  protected  against  the  claims  of  both.  In  the 
latter  case  the  only  decree  to  which  the  plaintiff  was  entitled,  was  a 
decree  that  the  bill  was  properly  filed;  or,  in  other  words,  that  he 
should  be  at  liberty  to  pay  the  rnoney,  or  bring  the  property  into 
court,  and  have  his  costs,  and  that  the  defendants  interplead,  and 
settle  the  conflicting  claims  between  themselves. 

§  824b.  Interpleader  is  now  regulated  by  the  Rules  of  the 
Supreme  Court,  1888,  Ord.  LVII.  The  Order  enacts  as  follows:  — 
1.  Relief  by  way  of  interpleader  may  be  granted  (a)  Where  the 
person  seeking  relief  (in  this  Order  called  the  applicant)  is  under 
liability  for  any  debt,  money,  goods,  or  chattels  (c),  for  or  in  respect 

(*)  Hoggart  v.  Cutis,  1  Or.  &  Phil.  197. 

(y)  East  and  West  India  Dock  Co.  v.  Littledale,  7  Hare,  57;.  Desborough  v, 
Harris,  5  De  G.  M.  &  G.  439.    As  to  the  latter  decision,  see  59  Vict.  c.  8. 

(z)  Slingsby  v.  Boulton,  1  Ves.  &  B.  334.  But  a  bill  by  the  sheriff  against  the 
execution  creditor  and  the  assignee  in  bankmptcy  of  the  execution  debtor  was  main- 
tained in  Child  v.  Mann,  3  Eq.  806,  and  since  the  1  &  2  Will.  4,  c.  58,  he  has  had 
the  right  to  interplead.     See  infra,  §  824b. 

(a)  The  language  of  the  Common  Law  Commissioners,  in  the  Eeport  to  Parlia- 
ment, March,  1830,  p.  24,  is  :  "  The  only  course  now  resorted  to  for  the  relief  of  a 
person  sued,  or  in  danger  of  being  sued,  by  several  claimants,  is  that  of  filing  a  bill 
to  compel  the  parties,  by  the  authority  of  a  court  of  equity,  to  interplead  at  law." 

(b)  Vyvian  v.  Vyvian,  4  De  G.  F.  &  J.  183. 

(c)  In  Robinson  v.  Jenkins,  24  Q.  B.  D.  275,  it  was  held  that  shares  are  chattels 
and  can  be  the  subject  of  interpleader. 


348  EQUITY  JURISPRUDENCE.  [CH.    XIX. 

of  which  he  is,  or  expects  to  be,  sued  by  two  or  more  parties  (in 
this  Order  called  the  claimants)  making  adverse  claims  thereto; 
(b)  Where  the  applicant  is  a  sheriff  or  other  officer  charged  with  the 
execution  of  process  by  or  under  the  authority  of  the  High  Court, 
and  claim  is  made  to  any  money,  goods,  or  chattels  taken  or  intended 
to  be  taken  in  execution  imder  any  process,  or  to  the  proceeds  or 
value  of  any  such  goods  or  chattels  by  any  person  other  than  the 
person  against  whom  the  process  issued.  2.  The  applicant  must 
satisfy  the  court  or  a  judge,  by  affidavit  or  otherwise — (a)  That  the 
applicant  claims  no  interest  in  the  subject-matter  in  dispute,  other 
than  for  charges  or  costs;  and  (b)  That  the  applicant  does  not  collude 
with  any  of  the  claimants;  and  (c)  That  the  applicant  is  willing  to 
pay  or  transfer  the  subject-matter  into  court,  or  to  dispose  of  it  as  the 
court  or  a  judge  may  direct.  3.  The  applicant  shall  not  be  disentitled 
to  relief  by  reason  only  that  the  titles  of  the  claimants  have  not  a 
common  origin,  but-  are  adverse  to  and  independent  of  one  another. 


§    825 826.  ]  BILLS  QUIA  TIMET.  349 


CHAPTER    XX. 


BILLS   QUIA   TIMET. 


§  825.  In  the  next  place,  let  us  proceed  to  the  consideration  of  another 
class  of  cases,  where  the  peculiar  remedies  administered  by  courts  of 
equity  constitute  the  principal,  although  not  the  sole,  ground  of 
jurisdiction,  and  that  is.  Bills  Quia  timet  (a).  We  have  already 
had  occasion,  in  another  place,  to  explain,  in  some  measure,  the 
nature  of  these  bills  and  the  origin  of  the  appellation,  and  to  show 
their  application  to  cases  of  covenants  and  contracts  with  sureties 
and"  others,  where  a  specific  performance  is  necessary  to  prevent  future 
mischief.  They  are  called  (as  we  have  seen)  Bills  Quia  timet,  in 
analogy  to  certain  writs  of  the  common  law,  whose  objects  are  of  a 
similar  nature.  Lord  Coke  has  explained  this  matter  very  clearly  in 
his  Commentary  on  Littleton.  "  And  note  "  (says  he)  "  that  there 
be  six  writs  in  law  that  may  be  maintained.  Quia  timet,  before  any 
molestation,  distress,  or  impleading.  As,  (1)  A  man  may  have  a  Writ 
of  Mesne  (whereof  Littleton  here  speaks)  before  he  be  distrained ;  (2)  A 
Warrantia  chariee,  before  he  be  impleaded ;  (3)  A  Monstraverurd,  before 
any  distress  or  vexation;  (4)  An  Audita  querela,  before  any  execution 
sued ;  (5)  A  Curia  claudenda,  before  any  default  of  inclosure ;  (6)  A  Ne 
injuste  vexes,  before  any  distress  or  molestation.  And  these  be  called 
Brevia  anticipantia,  writs  of  prevention  (6). 

§  826.  Now,  bills  in  equity,  Quia  timet,  answer  precisely  to  this 
latter  description.  They  are  in  the  nature  of  writs  of  prevention,  to 
accomplish  the  ends  of  precautionary  justice.  They  are,  ordinarily, 
applied  to  prevent  wrongs  or  anticipated  mischiefs,  and  not  merely 
to  redress  them  when  done.  The  party  seeks  the  aid  of  a  court  of 
equity,  because  he  fears  {quia  timet)  some  future  probable  injury  to 
his  rights  or  interests,  and  not  because  an  injury  has  already  occurred, 
which   requires   any  compensation   or   other  relief.      The   manner   in 

(o)  Ante,  §  §  701  to  710,  730.  See  also  1  Mad.  Ch.  Pr.  178,  179;  Vin.  Abr.  tit. 
Quia  timet,  A.  and  B.  These  would  now  take  the  form  of  an  action  in  the  Chancery- 
Division  in  the  nature  of  a  bill  Quia  timet. 

(b)  Co.  Litt.  100  a.  The  writ  of  Audita  querela  was  abolished  by  Order  XLII. 
s.  22,  of  the  Judicature  Act,  1873,  but  by  the  same  section  it  was  provided  that  any 
party  against  whom  judgment  has  been  given  might  apply  to  the  court  for  a  stay  of 
execution  or  other  relief  against  such  judgment  on  the  ground  of  facts  which  have 
arisen  too  la.te  to  be  pleaded,  and  such  relief  may  be  given  as  to  the  court  shall  seem 
fit. 


350  EQUITY    JURISPRUDENCE.  [CH.    XX. 

which  this  aid  is  given  by  courts  of  equity  is,  of  course,  dependent 
upon  circumstances.  They  interfere  sometimes  by  the  appointment 
of  a  receiver  to  receive  rents  or  other  income,  sometimes  by  an  order 
to  pay  a  pecuniary  fund  into  court,  sometimes  by  directing  security 
to  be  given,  or  money  to  be  paid  over,  and  sometimes  by  the  mere 
issuing  of  an  injunction  or  other  remedial  process,  thus  adapting  their 
relief  to  the  precise  nature  of  the  particular  case  and  the  remedial 
justice  required  by  it.  In  Fletcher  v.  Bealey  (c),  Mr.  Justice  Pearson 
explained  the  law  as  to  actions  Quia  timet  as  follows: — "  There  are  at 
least  two  necessary  ingredients  for  a  Quia  timet  action.  There  must, 
if  no  actual  damage  is  proved,  be  proof  of  imminent  danger,  and 
there  must  also  be  proof  that  the  apprehended  damage  will,  if  it 
comes,  be  very  substantial.  I  should  almost  say  it  must  be  proved 
that  it  will  be  irreparable,  because,  if  the  danger  is  not  proved  to  be 
so  imminent  that  no  one  can  doubt  that,  if  the  remedy  is  delayed  the 
damage  will  be  suffered,  I  think  it  miost  be  shown  that,  if  the  damage 
does  occur  at  any  time,  it  will  come  in  such  a  way  and  under  such 
circumstances  that  it  wiU  be  impossible  for  the  plaintiff  to  protect 
himself  against  it  if  relief  is  denied  to  him  in  a  Quia  tim,et  action. 

§  827.  In  regard  to  equitable  property,  the  jurisdiction  is  equally 
applicahle  to  cases  where  there  is  a  present  right  of  enjoyment,  and 
to  oases  where  the  right  of  enjoyment  is  future  or  contingent.  The 
object  of  the  bill  in  all  such  cases  is  to  secure  the  preservation  of  the 
property  to  its  appropriate  uses  and  ends ;  and  wherever  there  is 
danger  of  its  being  converted  to  other  purposes,  or  diminished,  or 
lost  by  gross  negligence,  the  interference  of  a  court  of  equity .  becomes 
indispensable.  It  will,  accordingly,  take  the  fund  into  its  own  hands, 
or  secure  its  due  management  and  appropriation,  either  by  the  agency 
of  its  own  officers  or  otherwise.  Thus,  for  instance,  if  property  in  the 
hands  of  a  trustee  for  certain  specific  uses  or  trusts  (either  expressed 
or  implied)  is  in  danger  of  being  diverted  or  squandered  to  the  injury 
of  any  claimant  having  a  present  or  future  fixed  title  thereto,  the 
administration  will  be  duly  secured  by  the  court,  according  to  the 
original  purposes,  in  such  a  manner  as  the  court  may,  in  its  discretion, 
under  all  the  circumstances,  deem  best  fitted  to  the  end;  as  by  the 
appointment  of  a  receiver,  or  by  payment  of  the  fund,  if  pecuniary, 
into  court,  or  by  requiring  security  for  its  due  preservation  and 
appropriation. 

§  828.   The  same  principle  is  applied  to  the  cases  of  executors  and 
administrators,  who  are  treated  as  trustees  of  the  personal  estate  of 
the  deceased  party.     If  there  is  danger  of  waste   of  the   estate,   or- 
collusion   between   the   debtors   of   the    estate    and   the    executors    or 
administrators,  whereby  the  assets  may  be  subtracted,  courts  of  equity 

(c)  28  Ch.  D.  688;  see  p.  698.  In  this  case,  applying  the  above  rule,  the  claim 
for  an  injunction  was  dismissed,  but  without  prejudice  to  the  right  of  the  plaintiff  to 
bring  another  action  in  case  of  actual  injury  or  imminent  danger. 


§    827—830.]  BILLS    QUIA   TIMET.  351 

will  interfere  and  secure  the  fund;  and,  in  case  of  collusion  with 
debtors,  they  wiU  order  the  latter  if  parties  to  the  suit  to  pay  the 
amount  of  their  debts  into  court  (d).  Or  they  may  appoint  a 
receiver  (e). 

§  829.  The  appointment  of  a  receiver,  when  directed,  is  m^ade  for 
the  benefit  and  on  behalf  of  all  the  parties  in- interest,  whether  parties 
to  the  suit  or  not,  and  not  for  the  benefit  of  the  plaintiff  or  of  one 
defendant  only  (/).  It  may  be  granted  in  any  case  of  equitable  property, 
upon  suitable  circumstances.  Thus,  where  there  are  creditors, 
annuitants,  and  others,  some  of  whom  are  creditors  at  law,  claiming 
under  judgments,  and  others  are  creditors  claiming  upon  equitable 
debts ;  if  the  property  be  of  such  a  nature  that,  if  legal,  it  may  be  taken 
in  execution,  it  may,  if  equitable,  be  put  into  the  possession  of  a 
receiver,  to  hold  the  same,  and  apply  the  profits,  under  the  direction  of 
the  court,  for  the  benefit  of  all  the  parties,  according  to  their  respec- 
tive rights  and  priorities  (g).  The  same  rule  applies  to  cases  where 
the  property  is  legal,  and  judgment  creditors  have  taken  possession 
of  it  under  prior  writs  of  execution;  for  it  is  competent  for  the  court 
to  appoint  a  receiver  in  favour  of  annuitants  and  equitable  creditors, 
not  disturbing  the  just  prior  rights,  if  any,  of  the  judgment  credi- 
tors (h).  Hence,  the  appointment  of  a  receiver,  in  cases  of  this  sort,  is 
often  called  an  equitable  execution.  But  in  a  very  late  case  (i)  it  was 
held  by  the  Court  of  Appeal  that  the  use  of  the  term  "  equitable 
execution  "  tends  to  error.  What  a  person  obtains  "  by  the  appoint- 
ment of  a  receiver,  is  not  execution,  but  equitable  relief,  which  is 
granted  on  the  ground  that  there  is  no  remedy  by  execution  at  law; 
it  is  a  taking  out  of  the  way  a  hindrance  which  prevents  execution  at 
common  law." 

§  830.  It  has  been  said  that  the  general  rule  of  equity,  to  appoint 
a  receiver  for  an  equitable  creditor  against  a  person  having  an  equit- 
able estate,  without  prejudice  to  persons  who  have  prior  estates,  is  to 
be  understood  in  this  limited  sense,  that  it  is  to  be  without  prejudice 
to  persons  having  prior  legal  estates,  and  so  that  it  will  not  prevent 
their  proceeding  to  obtain  possession  from  the  court  if  they  think 
proper.     And,  with  regard  to  persons  having  prior  equitable  estates, 

(d)  Manton  v.  Manton,  40  L.  J.  Ch.  93;  In  re  Beeny,  Ffrench  v.  Sproston, 
[1894]  1  Ch.  499;  ante,  §  §   422,  423,  424,  581,  and  note;  post,  §  836. 

(e)  Bainbrigge  v.  Blair,  3  Beav.  421. 

(/)  Davis  y.  Duke  of  Marlborough,  1  Swanst.  83 ;  s.c.  2  Swanst.  123 ;  Neate  v. 
Pink,  3  Mao.  &  G.  476 ;  Harris  v.  Beauchamp,  [1894]  1  Q.  B.  801. 

(g)  Anglo-Italian  Bank  v.  Davies,  9  Ch.  D.  275;  Smith  v.  Cowan,  6  Q.  B.  D.  75; 
Searle  v.  Choat,  25  Ch.  D.  723. 

(h)  Davis  v.  Duke  of  Marlborough,  1  Swanst.  83;  s.c.  2  Swanst.  125,  135,  139, 
140,  141,  145,  173;  White  v.  Bishop  of  Peterborough,  3  Swanst.  117,  118. 

(i)  In  re  Shephard,  Atkins  v.  Shephard,  431  Ch.  D.  131,  per  Cotton,  L.  J.,  at  p. 
135.  In  that  case  it  was  held  that  a  receiver  could  not  be  appointed  of  the  equitable 
estate  of  a  judgment  debtor,  who  was  dead  at  the  time  the  order  for  a  receiver  was 
made,  in  the  absence  of  any  person  to  represent  his  estate. 


352  EQUITY    JURISPRUDENCE.  [CH.    XX. 

the  court  will  take  care,  in  appointing  a  receiver,  not  to  disturb  their 
prior  equities;  and,  for  that  purpose,  it  will  direct  inquiries  to  deter- 
mine the  priorities  among  equitable  incumbrancers,  permitting  legal 
creditors  to  act  against  the  estates  at  law,  and  settling  the  priorities  of 
equitable  creditors  (fc). 

§  831.  The  appointment  of  a  receiver  is  a  rnatter  resting  in  the 
sound  discretion  of  the  court  and  the  power  conferred  upon  the  Supreme 
Court  by  the  Judicature  Act,  1873,  s.  25,  sub-s.  8,  wherever  it  is  just 
or  convenient  to  do  so,  has  not  altered  the  principles  upon  which  the 
court  of  chancery  formerly  acted  (l).  The  receiver,  when  appointed,  is 
treated  as  virtually  an  officer  of  the  court,  and  subject  to  its  orders  (m). 
Lord  Hardwicke  considered  this  power  of  appointment  to  be  of 
great  importance,  and  m.ost  beneficial  tendency ;  and  he  significantly 
said:  "It  is  a  discretionary  power,  exercised  by  the  court,  with  as 
great  utility  to  the  subject  as  any  authority  which  belongs  to  it;  and 
it  is  provisional  only,  for  the  more  speedy  getting  in  of  a  party's  estate, 
and  securing  it  for  the  benefit  of  such  person  who  shall  appear  to  be 
entitled;  and  it  does  not  at  all  affect  the  right  "  (n). 

§  832.  The  exercise  of  the  power  being  thus  discretionary,  it  would 
be  difficult,  with  any  precision,  to  mark  out  the  limits  within  which 
it  is  ordinarily  circumscribed,  even  if  such  a  task  were  within  the  scope 
of  these  Commentai-ies.  As,  however,  the  equitable  rights  and  inci- 
dents to  such  an  appointment  are  often  highly  important  to  the  parties 
in  interest,  and  may  affect  the  rights  and  remedies  of  third  persons 
having  adverse  claims,  it  will  be  proper  in  this  place  to  state  some  of 
the  principles  by  which  this  discretion  is  regulated. 

§  838.  Before  doing  so,  it  may  not  be  without  use  to  suggest  what 
some  of  those  rights  and  incidents  are;  and  the  more  so,  as  similar 
rights  and  incidents  belong  to  cases  of  sequestration  (o).  In  the  first 
place,  upon  the  appointment  of  a  receiver  of  the  rents  and  profits  of 
real  estate,  if  there  are  tenants  in  possession  of  the  premises,  they  are 
compellable  to  attorn;  and  the  court  thus  becomes  virtually,  pro  hdc 
vice,  the  landlord  (p).  In  the  next  place,  the  appointment  of  such  a 
receiver  is  generally  deemed  to  entitle  him  to  possession  of  the  pre- 
mises. It  does  not,  indeed,  in  all  cases,  amount  to  a  turning  of  the 
other  party  out  of  possession ;  for,  in  many  cases,  as  in  the  case  of  an 
infant's  estate,  the  receiver's  possession  is  that  of  the  infant.  But 
where  the  rights  are  adverse  in  the  different  parties  in  the  suit,  the 
possession  of  the  receiver  is  treated  as  the  possession  of  the  party  who 

(fc)  Lord  Eldon,  in  Davis  v.  Duke  of  Marlborough,  2  Swanst.  145,  146;  Searle  v, 
Choat,  25  Ch.  D.  723. 

(I)  Harris  v.  Beauchamp,  [1894]  1  Q.  B.  801. 

(m)  Angel  v.  Smith,  9  Vee.  335 ;  Hutchinson  v.  Massareene,  2  Ball  &  Beat.  55. 

(n)  Skip  v.  Harwood,  3  Atk.  564. 

(o)  Angel  v.  Smith,  9  Ves.  338.  See  In  re  Hoare,  Hoare  v.  Owen,  [1892]  3 
Ch.  94. 

(p)  Sharp  V.  Carter,  3  P.  Will.  379. 


§    831 835.]  BILLS  QUIA    TIMET..  353 

ultimately  establishes  his  right  to  it.  The  receiver,  however,  cannot 
proceed  in  any  ejectment  against  the  tenants  of  any  estate,  except 
by  the  authority  of  the  court  (q).  Nor  will  the  possession  of  the 
tenants  be  ordinarily  disturbed  by  the  court,  where  a  receiver  is 
appointed; 

§  833  a.  In  the  next  place,  a  receiver,  when  in  possession,  has  very 
little  discretion  allowed  him ;  but  he  must  apply,  from  time  to  time, 
to  the  court  for  authority  to  do  such  acts  as  may  be  beneficial  to  the 
estate.  Thus,  he  is  not  at  liberty  to  bring  or  to  defend  actions ;  or  to 
let  the  estate ;  or  to  lay  out  money ;  unless  by  the  special  leave  of  the 
court  (r).  In  the  next  place,  when  such  a  receiver  is  in  possession, 
under  the  process  or  authority  of  the  court,  in  execution  of  a  judg- 
ment or  order,  his  possession  is  not  to  be  disturbed,  even  by  an  eject- 
ment under  an  adverse  title,  without  the  leave  of  the  court.  For  his 
possession  is  deemed  the  possession  of  the  court;  and  the  court  will 
not  permit  itself  to  be  made  a  suitor  in  a  court  of  law  (s).  The  proper 
and  usual  mode  adopted  under  such  circumstances,  is,  for  the  party, 
claiming  an  adverse  interest,  to  apply  to  be  permitted  to  intervene  pro 
interesse  s-uo.  He  is  then  allowed  to  enforce  his  rights  (if  any)  accord- 
ing to  the  evidence  which  he  adduces  (t). 

§  834.  Let  us  now  proceed  to  consider  some  of  the  cases,  in  which 
a  receiver  will  be  appointed.  We  have  already  seen,  that,  in  cases 
of  elegit  and  conflicting  legal  equitable  debts  and  charges  upon  the 
estate,  it  is  a  common  course  to  appoint  a  receiver,  for  the  benefit  of 
all  concerned  (u).  In  cases,  also,  where  an  estate  is  held  by  a  party, 
under  a  title  obtained  by  fraud,  actual  or  constructive,  a  receiver  will 
be  appointed  (x).  And  also  where  the  interest  of  a  judgment  debtor 
is  not  legal,  but  equitable.  In  this  case  the  appointment  of  a  receiver 
acts  as  an  equitable  execution  (y). 

§  835.  But  it  is  not  infrequent  for  a  bill  Quia  timet  to  ask  for  the 
appointment  of  a  receiver  against  a  party  who  is  rightfully  in  posses- 
sion, or  who  is  entitled  to  the  possession  of  the  fund,  or  who  has  an 
interest  in  its  due  administration.  In  such  cases,  courts  of  equity 
will  pay  a  just  respect  to  such  legal  and  equitable  rights  and  interests 
of  the  possession  of  the  fund,  and  will  not  withdraw  it  from  him  by 
the  appointment  of  a  receiver,  unless  the  facts,  averred  and  established 
in  proof,  show  that  there  has  been  an  abuse,  or  is  danger  of  abuse,  on 

(g)  Wynn  v.  Lord  Newborough,  3  Bro.  C.  C.  88;  s.c.  1  Ves.  Jun.  164. 

(r)  Bristowe  v.  Needham,  2  Ph.  170;  Viola  v.  Anglo-American  Cold  Storage  Co., 
[1912]  2  Ch.  306. 

(s)  Angel  v.  Smith,  9  Ves.  335;  Russell  v.  East  Anglian  Ry.,  3  Mac.  &  G.  104. 

(t)  Searle  v.  Ghoat,  26  Ch.  D.  723. 

(u)  Ante,  §  829. 

(x)  Huguenin  v.  Baseley,  13  Ves.  105;  Stilwell  v.  Wilkins,  Jac.  280. 

iy)  Hatton  v.  Haywood,  L.  E.  9  Ch.  229;  Anglo-Italian  Bank  v.  Davies,  9  Ch. 
D.  275 ;  Ex  parte  Watkins,  11  Ch.  D.  691 ;  13  Ch.  D.  262 ;  Ex  parte  Evans,  13  Ch.  D. 
252;  Smith  v.  Cornell,  6  Q.  B.  D.  75;  Fuggle  v.  Bland,  11  Q.  B.  D.  711. 

E.J.  23 


354  EQUITY    JURISPRUDENCE.  [CH.    XX. 

his  own  part.  For  the  rule  of  such  courts  is  not  to  displace  a  bond  fide 
possessor  from  any  of  the  just  rights  attached  to  his  title,  unless  there 
be  some  equitable  ground  for  interference  (z). 

§  836.  This  principle  may  be  easily  illustrated  in  the  common  case 
of  executors  and  administrators.  They  are  by  law  entrusted  with 
authority  to  collect  and  administer  the  assets  of  the  deceased  party; 
and  courts  of  equity  will  not  interfere  with  their  management  and 
administration  of  such  assets  upon  slight  grounds.  Whenever,  there- 
fore, the  appointment  of  a  receiver  is  sought  against  an  executor  or 
administrator,  it  is  necessary  to  est-ablish  by  suitable  proofs,  that  there 
is  some  positive  loss,  or  danger  of  loss,  of  the  funds;  as,  for  instance, 
soma  waste  or  misapplication  of  the  funds,  or  some  apprehended  danger 
from  the  bankruptcy,  insolvency,  or  personal  fraud,  misconduct,  or 
negligence  of  the  executor  or  administrator  (a).  If  there  be  a  solvent 
executor,  no  appointment  will  be  made  (b).  Mere  poverty  of  the  party 
will  not,  of  itself,  constitute  a  sufficient  ground;  but  there  must  be 
other  ingredients  to  justify  the  appointment  (c). 

§  837.  So,  where  there  are  several  incumbrances  on  an  estate,  as 
the  first  incumbrancer  is  entitled  to  the  possession  of  the  estate  and 
the  receipt  of  the  rents  and  profits,  a  court  of  equity  will  not  deprive 
him  of  such  possession  and  profits  unless  upon  sufficient  cause  shown. 
But  if  the  first  incumbrancer  is  not  in  possession,  and  does  not  desire 
it;  or  if  he  has  been  paid  off;  or  if  he  refuses  to  receive  what  is  due 
to  him;  there  a  receiver  may  be  appointed  upon  the  application  of  a 
subsequent  incumbrancer.  But  in  all  cases  of  this  sort,  where  the 
court  acts  in  favour  of  subsequent  incumbrancers,  it  is  cautious,  in 
thus  interfering,  not  to  disturb  any  prior  rights  or  equities ;  and  there- 
fore, before  it  acts  finally,  it  will  endeavour  to  ascertain  the  priorities 
and  equities  of  all  the  incumbrancers ;  and  then  it  will  apply  the  funds, 
which  are  received,  according  to  such  priorities  and  equities,  in  case 
the  incumbrancers  entitled  thereto  shall  make  a  seasonable  applica- 
tion for  the  purpose  {d). 

§  888.  So,  where  the  tenants  of  particular  estates  for  life,  or  in 
tail,  neglect  to  keep  down  the  interest  due  upon  incumbrances  upon 
the  estates,  courts  of  equity  will  appoint  a  receiver  to  receive  the  rents 
and  profits,  in  order  to  keep  down  the  interest;  for  this  is  but  a  mere 
act  of  justice  to  the  incumbrancers,  and  also  to  those  who  may  be 
otherwise  interested  in  the  estates  (e).       But  here,  again,  it  is  to  be 

(«)  Tyson  v.  Fairclough,  2  Sim.  &  St.  142;  Carrow  v.  Ferrior,  L.  E.  3  Ch.  719; 
Foxwell  V.  Van  Grutten,  [1897]  1  Ch.  64. 

(a)  In  re  Johnson,  L.  E.  1  Ch.  325;  In  re  Hopkins,  Dowd  v  Hawkin,  19  Ch  D 
61. 

(b)  Bowen  v.  Phillips,  [1897]  1  Ch.  174. 

(c)  Anon.,  12  Ves.  4;  Howard  v.  Papera,  1  Madd.  142. 

(d)  White  V.  Bishop  of  Peterborough,  3  Swanst.  109;  Berney  \.  Sewell,!  J.  &W. 
647 ;  Wood  v.  Rowe,  2  J,  &  W.  554 ;  Langton  v.  Langton,  7  De  G.  M.  &  G.  30. 

(e)  Giffard  v.  Hart,  1  Sch.  &  Lefr.  407,  note;  Bertie  v.  Lord  Abingdon,  3  Meriv 
560. 


§    836 — 842.]  BILLS    QUIA   TIMET.  355 

remembered,  that  the  court  will  not  force  incumbrancers  to  receive 
their  interest;  and,  therefore,  if  they  would  avail  themselves  of  the 
privileges  of  receiving  the  interest,  they  must  make  a  seasonable  appli- 
cation for  the  purpose  (/). 

§  839.  But  although  courts  of  equity  will  not  appoint  a  receiver, 
except  upon  special  grounds,  justifying  such  an  interference  in  the 
nature  of  a  bill  Quia  timet ;  yet  there  are  cases  in  which  it  will  inter- 
pose, and  require  money  to  be  paid  into  court  by  a  party  who  stands 
in  the  relation  of  a  trustee  to  the  property,  without  any  ground  being 
laid  to  show  that  there  has  been  any  abuse  or  any  danger  to  the  fund. 
Thus,  in  eases  of  bills  brought  by  creditors,  or  legatees,  or  distributees, 
against  executors  or  administrators,  for  a  settlement  of  the  estate,  if 
the  executors  or  administrators  admit  assets  in  their  hands,  and  the 
court  takes  upon  itself  a  settlement  of  the  estate,  it  will  direct  the 
assets  to  be  paid  into  court  {g). 

§  840.  The  like  doctrine  has  been  applied  to  cases  where  an  execu- 
tor or  administrator  has  lodged  funds  of  the  estate  in  the  hands  of  a 
banker,  avowedly  as  assets.  In  such  cases,  upon  the  application  of  a 
party  in  interest,  as,  for  instance,  of  a  creditor  or  a  legatee,  the  banker 
will  be  directed  to  pay  the  money  into  court;  for  it  is  a  rule  in  equity 
to  follow  trust-money  whenever  it  may  be  found  in  the  hands  of  any 
person  who  has  not  prima  facie  a  right  to  hold  it,  and  to  order  him  to 
bring  it  into  court  (h). 

§  841.  The  general  rule,  upon  which  courts  of  equity  proceed  in 
requiring  money  to  be  paid  into  court,  is  this,  that  the  party,  who  is 
entitled  to  the  fund,  is  also  entitled  to  have  it  secured.  And  this  rule 
is  equally  applicable  to  cases  where  the  plaintiffs,  seeking  the  payment, 
are  solely  entitled  to  the  whole  fund,  and  to  cases  where  they  have 
acquired  such  an  interest  in  the  whole  fund,  together  with  others,  as 
entitles  them,  on  their  own  behalf  and  the  behalf  of  others,  to  have 
the  sum  secured  in  court.  Now,  this  is  precisely  the  case  in  what  is 
commonly  called  a  creditor's  action  for  the  administration  of  an 
estate  (i). 

§  842.  And  courts  of  equity  will,  in  cases  of  this  sort,  not  only 
order  money  to  be  paid  into  court,  but  they  will  also  direct  that  papers 
and  writings  in  the  hands  of  executors  and  administrators  shall  be 
deposited  in  court,  for  the  benefit  of  those  interested,  unless  there  are 
other  purposes  which  require  that  they  should  be  retained  in  the  hands 
of  the  executors  or  administrators  (k). 

if)  Gvesley  v.  Adderley,  1  Swanst.  573;  Thomas  v.  Brigstoeke,  i  Euss.  64; 
Flight  V.  Camac,  25  L.  J.  Ch.  654. 

(g)  Freeman  v.  Fairlie,  3  Mer.  29 ;  Neville  v.  Matthewman,  [1894]  3  Ch.  345. 

(h)  See  Bowsher  v.  Watkins,  1  Eusb.  &  Myl.  277;  Gedge  v.  Trail,  1  Euss.  &  Myl. 
281,  note;  Law  v.  Law,  2  Coll.  41. 

(i)  Ante,  §  §  543,  544,  546. 

(k)  Freeman  v.  Fairlie,  3  Meriv.  29,  30. 


356  EQUITY    JURISPRUDENCE.  [CH.    XX. 

§  843.  The  preceding  remarks  are  principally  (but  not  exclusivesly) 
applicable  to  cases  of  equitable  property,  whether  the  right  of  enjoy- 
ment thereof  be  present,  future,  or  contingent.  In  regard  to  legal 
property,  it  is  obvious  that,  where  the  right  of  enjoyment  is  present, 
the  legal  remedies  will  be  generally  found  sufficient  for  the  protection 
and  vindication  of  that  right.  But  where  the  right  of  enjoyment  is 
future  or  contingent,  the  party  entitled  is  often  without  any  adequate 
remedy  at  law  for  any  injury  which  he  may  in  the  meantime  sustain 
by  the  loss,  destruction,  or  deterioration  of  the  property  in  the  hands 
of  the  party  who  is  entitled  to  the  present  possession  of  it.  Thus, 
for  instance,  if  personal  property  should  be  given  by  a  will  to  A.  for 
life,  and  after  his  death  to  B.,  there  is,  as  we  have  seen,  at  law,  no 
remedy  to  secure  the  legacy  to  B.,  whether  it  be  of  specific  chattels, 
or  of  a  pecuniary  nature  (l). 

§  844.  Indeed,  by  the  ancient  common  law,  there  coxild  in  general 
be  no  future  right  of  property,  created  in  personal  goods  and 
chattels,  to  take  place  in  expectancy;  for  they  were  considered  to  be 
of  so  transitory  a  nature,  and  so  liable  to  be  lost,  destroyed,  or  other- 
wise impaired,  that  future  interests  in  them  were  not,  in  the  law, 
treated  as  of  any  account  (m).  One  exception  was  permitted,  at  an 
early  period,  as  to  goods  and  chattels  given  by  will  in  remainder,  after 
a  bequest  for  life.  But  that  was  at  first  allowed  only  where  the  use 
of  the  goods  or  chattels,  and  not  the  goods  or  chattels  themselves,  was 
given  to  the  first  legatee ;  the  property  being  supposed  to  continue 
all  the  time  in  the  executor  of  the  testator  (n).  That  distinction  has 
since  been  disregarded ;  and  the  limitation  in  remainder  is  now  equally 
respected,  whether  the  first  legatee  takes  the  use,  or  the  goods  and 
chattels  themselves  for  life  (o). 

(I)  Ante,  §  603;  1  Bq.  Abr.  360,  pi.  4. 

(m)  2  Black.  Comm.  398;  1  Eq.  Abr.  360,  pi.  4;  Fearne  on  Conting.  Bern,  by 
Butler  (7th  edit.),  pp.  401  to  407,  413,  414. 

(n)  2  Black.  Comm.  398;  Hyde  v.  Parrat,  1  P.  Will.  1,  and  caees  there  cited; 
Tissen  v.  TUsen,  1  P.  Will.  502. 

(o)  2  Black.  Comm. ;  Anon.,  2  Preem.  145,  206;  Hyde  v.  Parrat,  1  P.  Will.  1,  6; 
Vpwell  V.  Halsey,  1  P.  Will.  651;  Vachel  v.  VacheJ,  1  Ch.  Cas.  129,  130;  Foley  v. 
Burnell,  1  Bro.  C.  C.  274,  278;  Co.  Litt.  20  (o),  Harg.  note  (5);  Fearne  on  Conting. 
Eem.  and  Exec.  Dev.  (7th  edit.),  by  Butler,  pp.  401  to  407.  This  subject  is  discussed 
very  much  at  large  in  Mr.  Fearne's  Essay  on  Contingent  Bemainders  and  Executory 
Devises,  from  pp.  401  to  407  (7th  edit.),  by  Butler.  There  is  in  the  same  work  a  very 
valuable  discussion  upon  the  rights  of  the  tenant  for  life  in  the  goods  and  chattels, 
and  how  far  the  same  may  be  taken  in  execution  by  his  creditors.  The  result  of  the 
whole  discussion  seems  to  be,  that  the  creditors  cannot  subject  the  property  to  their 
claims  beyond  the  rights  of  the  tenant  for  life  therein.-  Mr.  Fearne  seems  to  consider 
that  the  validity  of  the  executory  dispositions  of  personal  chattels  (i.e.,  in  remainder 
after  a  life  estate)  was  originally  founded,  and  still  rests,  on  the  doctrine  and  inter- 
position of  courts  of  equity.  But  he  admits,  that  in  chattels  real  the  right  is  recog- 
nized at  law.  Fearne  on  Conting.  Eem.  pp.  412,  413  (7th  ed.) ;  Matthew  Manning's 
Case,  8  Co.  95;  Lampet's  Case,  10  Co.  47;  post,  §  847,  note;  Bac.  Abr.  Uses  and 
Trusts,  G.  2,  p.  109  (Gwillim's  edit.);  Wright  v.  Cartwright,  1  Burr.  282.  See  In  re 
Smith's  Will,  20  Beav.  197. 


§    843 849.]  BILLS   QUIA   TIMET.  357 

§  845.  In  all  cases  of  this  sort,  where  there  is  a  future  right  of 
enjoyment  of  personal  property,  courts  of  equity  will  now  interpose 
and  grant  relief  upon  a  bill  Quia,  timet,  where  there  is  any  danger  of 
loss  or  deterioration,  or  injury  to  it,  in  the  hands  of  the  party  who  is 
entitled  to  the  present  possession.  We  have  already  had  occasion  to 
take  notice  of  the  manner  in  which  this  remedial  jurisdiction  is  applied 
in  oases  of  legacies,  whether  pecuniary  or  specific,  and  whether  vested 
or  contingent  (p).  The  same  doctrine  is  applied  to  cases  of  annuities, 
charged  on  the  personal  estate  (g). 

§  846.  The  same  remedial  justice  wiU  be  applied  to  other  cases,  as 
well  as  to  legacies  and  personal  annuities.  Thus,  for  instance,  where 
a  future  interest  in  personal  property  is  assigned  by  the  owner  to  his 
creditors,  the  latter  may  come  into  a  court  of  equity  to  have  the  pro- 
perty secured  to  their  future  use  (r).  On  one  occasion  of  this  sort. 
Lord  Hardwicke  said,  that  nothing  was  better  settled  than  that, 
"  whenever  a  demand  was  made,  out  of  assets  certainly  due,  but  pay- 
able at  a  future  time,  the  person  entitled  thereto  might  come  against 
the  executor  to  have  it  secured  for  his  benefit,  and  set  apart  in  the 
meantime,  that  he  might  not  be  obliged  to  pursue  those  assets  through 
several  hands."  Nor  is  there  any  ground  for  the  distinction  taken 
between  a  legacy  afed  a  demand  by  contract  (s). 

§  847.  Upon  the  same  ground,  where,  under  marriage  articles,  the 
plaintiff,  in  case  she  survived  her  husband,  had  a  contingent  interest 
in  certain  South  Sea  Annuities,  and  a  certain  promissory  note,  which 
was  specifically  appointed  for  the  payment  of  the  same,  to  be  allowed 
her,  and  the  defendant  had  threatened  to  aliene  the  property  and 
securities,  on  a  bill  Quia  timet,  a  decree  was  made,  that  the  defendant 
should  give  security  to  have  the  same  forthcoming  (t). 

§  848.  So,  where  a  party,  seised  of  lands  in  fee,  grants  a  rent- 
charge  in  fee,  issuing  thereout,  and  afterwards  devises  the  lands  to 
A.  for  life,  with  remainder  to  B.  in  fee,  B.  may  maintain  a  bill  Quia  • 
timet,  to  compel  A.  to  pay  the  arrears  during  his  life,  for  fear  that 
otherwise  the  whole  would  fall  on  his  reversionary  estate  (m).  And 
the  like  principle  would  apply,  undeu  like  circumstances,  to  a  legacy, 
payable  in  futuro,  and  chargeable  on  land,  to  compel  the  tenant  for 
life  to  pay  or  secure  a  proportion  of  the  legacy  (as). 

§  849.  Another  case  of  the  apphcation  of  the  remedial  justice  of 
courts  of  equity  by  a  bill  of  Quia  timet  is  in  cases  of  sureties  of  debtors 

(p)  Ante,  §  603,  604;  Fearne  on  Conting.  Kem.  p.  413  (7th  edit.),  by  Butler; 
id.  p.  414. 

(g)  Batten  v.  Earnley,  2  P.  Will.  163;  Slanning  v.  Style,  3  P.  Will.  336,  837. 

(r)  Johnson  v.  Mills,  1  Ves.  Sen.  282,  288. 

(s)  Ibid. 

(t)  Flight  V.  Cook,  2  Ves.  Sen.  619.  This  doctrine  is  discussed  at  large  in  Eq. 
Abr.  360,  pi.  4.  See  also  Fearne  on  Cont.  Bern.  pp.  401  to  415  by  Butler;  Bac.  Abr. 
Uses  and  Trusts,  G.  2;  and  ante,  §  §  843,  844. 

(u)  Hayes  v.  Hayes,  1  Ch.  Cas.  223.  {x)  Ibid. 


358  EQUITY    JURISPRUDENCE.  [CH.    XX. 

and  others.  We  have  already  seen,  that  if  a  surety,  after  the  debt 
has  become  due,  has  any  apprehension  of  loss  or  injury  from  the  delay 
of  the  creditor  to  enforce  the  debt  against  the  principal  debtor,  he  may 
bring  an  action  of  this  sort  to  compel  the  debtor  to  discharge  the  debt 
or  other  obligation,  for  which  the  surety  is  responsible  (y).  Nay,  it 
has  been  insisted  (as  we  have  also  seen)  that  the  surety  may  come  into 
equity,  and  compel  the  creditor  to  sue  the  principal,  and  collect  the 
debt  from  him  in  discharge  of  the  surety,  at  least,  if  the  latter  will 
xmdertake  to  indemnify  the  creditor  for  the  risk,  delay,  and  expense 
of  the  suit. 

§  851.  There  are  other  cases,  where  a  remedial  justice  is  applied 
in  the  nature  of  bills  Quia  timet,  as  where  courts  of  equity  interpose 
to  prevent  the  waste,  or  destruction,  or  deterioration  of  property, 
pendente  lite,  or  to  prevent  irreparable  mischief.  But  these  cases  will 
more  properly  come  under  review  in  our  subsequent  inquiries  in 
matters  of  injunction. 

(y)  Ante,  §  §  327,  330,  639,  722,  729. 


§    851 — 853.]  BILLS   OF   PEACE.  359 


CHAPTER  XXI. 

BILLS     OF     PEACE. 

§  852.  We  come,  in  the  next  place,  to  the  consideration  of  what  are 
technically  called  Bills  of  Peace  (a).  These  bills  sometimes  bear  a 
resemblance  to  bills  Quia,  timet  (b),  which  latter  (as  has  beeji  already 
stated)  seem  to  have  been  founded  upon  analogy  to  certain  proceed- 
ings at  the  common  law.  Quia  timet.  Bills  Quia  timet,  however,  are 
quite  distinguishable  from  the  former  in  several  respects,  and  are 
always  used  as  a  preventive  process,  before  a  suit  is  actually  instituted; 
whereas  bills  of  peace,  although  sometimes  brought  before  any  suit  is 
instituted  to  try  a  right,  are  most  generally  brought  after  the  right 
has  been  tried  at  law.  It  is  not  my  design,  in  this  place,  to  enter  upon 
the  subject  of  the  cases  generally,  in  which  courts  of  equity  will  decree 
a  perpetual  injunction ;  for  that  will  more  properly  be  examined  under 
another  head;  (c)  but  simply  to  treat  of  bills  seeking  an  injunction, 
and  strictly  falling  under  the  denomination  of  bills  of  peace. 

§  853.  By  a  bill  of  peace  we  are  to  understand  a  bill  brought  by 
a  person  to  establish  and  perpetuate  a  right  which  he  claims,  and 
which,  from  its  nature,  may  be  controverted  by  different  persons,  at 
different  times,  and  by  different  actions;  or,  where  separate  attempts 
have  already  been  unsuccessfully  made  to  overthrow  the  same  right, 
and  justice  requires  that  the  party  should  be  quieted  in  the  right,  if 
it  is  already  sufficiently  established ;  or  if  it  should  be  sufficiently 
established  under  the  direction  of  the  court.  The  obvious  design  of 
such  a  bill  is  to  procure  repose  from  perpetual  litigation,  and,  there- 
fore, it  is  justly  called  a  bill  of  peace.  The  general  doctrine  of  public 
policy,  which,  in  some  form  or  other,  may  be  found  in  the  jurisprudence 
of  every  civilized  country,  is,  that  an  end  ought  to  be  put  to  litigation, 
and,  above  all,  to  fruitless  litigation:  Interest  reipublicse  ut  sit  finis 
litium.  If  suits  might  be  perpetually  brought  to  litigate  the  same 
questions  between  the  same  parties,  or  their  privies,  as  often  as  either 
should  choose,  it  is  obvious  that  remedial  justice  would  soon  become 
a  mere  mockery ;  for  the  termination  of  one  suit  would  only  become 
the  signal  for  the  institution  of  a  new  one ;  and  the  expenses  might 

(o)  Co.  Litt.  100  (a).  Since  the  Judicature  Act  it  would  be  called  an  action  in 
the  nature  of  a  bill  of  peace,  and  could  be  brought  either  in  the  Chancery  Division  o- 
in  the  Queen's  Bench  Division  of  the  High  Court. 

(b)  Ante,  §  825.  (c)  Post,  §  §  873  to  968. 


360'  EQUITY    JURISPRUDENCE.  [CH.    XXI. 

become  ruinous  to  all  the  parties.  The  obvious  ground  of  the  jurisdic- 
tion of  courts  of  equity,  in  cases  of  this  sort,  is  to  suppress  useless 
litigation,  and  to  prevent  multiplicity  of  suits. 

§  854.  One  class  of  cases,  to  which  this  remedial  process  pro- 
perly applied  was,  where  there  was  one  general  right  to  be  established 
against  a  great  number  of  persons.  And  it  might  be  resorted  to,  either 
where  one  person  claims  or  defends  a  right  against  many,  or  where 
many  claim  or  defend  a  right  against  one  (d).  In  such  cases,  courts  of 
equity  interposed  in  order  to  prevent  multiplicity  of  suits  (e);  for,  as 
each  separate  party  might  sue,  or  might  be  sued,  in  a  separate  action 
at  law,  and  each  suit  would  only  decide  the  particular  right  in  question 
between  the  plaintiff  and  defendant  in  that  action,  litigation  might 
become  interminable.  Courts  of  equity,  therefore,  having  a  power  to 
bring  all  the  parties  before  them,  would  at  once  proceed  to  the  ascer- 
tainment of  the  general  right ;  and,  if  it  be  necessary,  they  would  ascer- 
tain it  by  an  action  or  issue  at  law,  and  then  make  a  decree  finally 
binding  upon  all  the  parties  (/). 

§  855.  Bills  of  this  nature  may  be  brought  by  a  lord  against  tenants 
for  an  encroachment  under  colour  of  a  common  right;  or  by  tenants 
against  the  lord  for  disturbance  of  a  common  right;  by  a  party  in 
interest  to  establish  a  toll  due  by  a  custom ;  by  a  like  party  to  establish 
the  right  to  profits  of  a  fair,  there  being  several  claimants ;  by  a  lord 
to  establish  an  inclosure,  which  he  has  approved  under  the  statute  of 
Merton,  and  which  his  tenants  throw  down,  although  sufficient 
common  of  pasture  is  left  {g). 

§  856.  So,  where  a  party  has  possession,  and  claims  a  right  of 
fishery  for  a  considerable  distance  on  the  river,  and  the  riparian  pro- 
prietors set  up  several  adverse  rights;  he  may  have  a  bill  of  peace 
against  all  of  them  to  establish  his  right,  and  quiet  his  possession  (h). 
So,  a  bill  of  peace  will  lie  to  settle  the  amount  of  a  general  fine  to  be 
paid  by  all  the  copyhold  tenants  of  a  manor.  So,  it  will  lie  to  establish 
a  right  of  common  of  the  freehold  tenants  of  a  manor  ((').     So,  it  will 

(d)  Sheffield  Watenoorks  v.  Yeomanjr,  L.  E.  2  Ch.  8;  Phillips  v.  Hudson,  L.  E. 
2  Ch.  243. 

(e)  Elme  Hospital  v.  Andover,  1  Vern.  266;  Hanson  v.  Gardiner,  7  Ves.  309,  310; 
Ware  v.  Horwood,  14  Ves.  32,  33;  Dilley  v.  Doig,  2  Ves.  Jun.  486;  Cooper,  Eq.  PI. 
Introd.  p.  xxxiv. 

(/)  Lord  Tenham  v.  Herbert,  2  Atk.  483,  484.  Under  Bolt's  Act  (25  &  26  Vict, 
u.  42),  courts  of  equity  were  given  power  to  determine  the  right  themselves. 

(3)  How  V.  Tenants  of  Bromsgrove,  1  Vern.  22;  Elme  Hospital  v.  Andover,  1 
Vern.  266;  Pawlet  v.  Ingres,  1  Vern.  308;  Brown  v.  Vermuden,  1  Ch.  Gas.  272;  Budge 
V.  Hopkins,  2  Eq.  Abr.  p.  170,  pi.  27 ;  Conyers  v.  Abergavenny ,  1  Atk.  284,  286 ;  Poor 
V.  Clark,  2  Atk.  615;  Weekes  v.  Slake,  2  Vern.  301;  Arthington  v.  Fawkes,  2  Vern. 
356 ;  Corporation  of  Carlisle  v.  Wilson,  13  Ves.  279 ;  280 ;  Hanson  v.  Gardiner,  7  Ves. 
305,  309,  310;  Duka  of  Norfolk  v.  Myers,  4  Mad.  60,  117. 

(h)  Mayor  of  Yorkv.  Pilkington,  1  Atk.  282;  Tenham  v.  Herbert,  2  Atk.  483. 
See  New  River  Company  V.  Greaves,  2  Vern.  431,  432. 

(j)  Middleton  v.  Jackson,  1  Ch.  18  (33) ;  Popham  v.  Lancaster,  1  Ch.  96 ;  Cowper 
V.  Clerk,  3  P.  Will.  167;  Powell  v.  Powis,  1  Y.  &  Jer.  159. 


§  854 — 859.]  BILLS  OF  peace.  361 

lie  to  establish  a  duty,  claimed  by  a  municipal  corporation  against 
many  persons,  although  there  is  no  privity  between  them  (fe). 

§  857.  But  to  entitle  a  party  to  maintain  a  bill  of  peace,  it  must 
be  clear  that  there  is  a  right  claimed,  which  affects  many  persons,  and 
that  a  suitable  number  of  parties  in  interest  are  brought  before  the 
court;  for,  if  the  right  is  disputed  between  two  persons  only,  not  for 
themselves  and  all  others  in  interest,  but  for  themselves  alone,  the 
bill  will  be  dismissed ;  for  it  cannot  then  conclude  any  persons  but  the 
very  defendants  (I). 

§  858.  It  seems,  too,  that  courts  of  equity  will  not,  upon  a  bill  of 
this  nature,  decree  a  perpetual  injunction  for  the  establishment  or  the 
enjoyment  of  a  right  of  a  party,  who  claims  in  contradiction  to  a  public 
right;  as  if  he  claims  an  exclusive  right  to  a  highway,  or  to  a  common 
navigable  river,  or  an  exclusive  right  to  a  rope-ferry  across  a  river; 
for  it  is  said,  that  this  would  be  to  enjoin  all  the  people  of  the  state  or 
country  {m).  But  the  true  principle  is,  that  courts  of  equity  will  not, 
in  such  cases,  upon  principles  of  public  policy,  intercept  the  assertion 
of  public  rights. 

§  859.  Another  class  of  cases  to  which  bills  of  peace  were  ordinarily 
applied,  is,  where  the  plaintiff  had,  after  repeated  and  satisfactory 
trials,  established  his  right  at  law ;  and  yet  was  in  danger  of  further 
litigation  and  obstruction  to  his  right  from  new  attempts  to  controvert 
it.  Under  such  circumstances,  courts  of  equity  would  interfere,  and 
grant  a  perpetual  injunction  to  quiet  the  possession  of  the  plaintiS, 
and  to  suppress  future  litigation  of  the  right  (n).  This  exercise  of 
jurisdiction  was  formerly  much  questioned.  Lord  Cowper,  in  a  cele- 
brated case,  where  the  title  to  land  had  been  five  several  times  tried 
Ln  an  ejectment,  and  five  verdicts  given  in  favour  of  the  plaintiff,  re- 
fused to  sustain  the  jurisdiction  for  a  perpetual  injunction;  and  said 
that  the  application  was  new,  and  did  not  fall  under  the  general  notion 
of  a  bill  of  peace,  and  this  was  only  a  suit  between  A.  and  B.,  and  one 
man  is  able  to  contend  against  another.  But  his  decision  was  over- 
ruled by  the  House  of  Lords,  and  a  perpetual  injunction  was  decreed, 
upon  the  ground  that  it  was  the  only  adequate  means  of  suppressing 
oppressive  litigation  and  irreparable  mischief  (o).  And  this  doctrine 
has  ever  since  been  steadily  adhered  to.     However,  courts  of  equity 

(k)  City  of  London  v.  Perkins,  i  Bro.  Pari.  C.  157,  1  Mad.  Pr.  Ch.  138,  139; 
Mayor  of  York  v.  Pilkington,  1  Atk.  284;  Lord  Tenham  v.  Herbert,  2  Atk.  483,  484. 

(l)  Disney  v.  Robertson,  Bunb.  41;  Cowper  v.  Clerk,  3  P.  Will.  15;  Welby  v. 
Duke  of  Rutland,  3  Bro.  Pari.  C.  575;  Weller  v.  Smeaton,  1  Bro.  C.  C.  672;  Baker 
V.  Rogers,  2  Eq.  Abr.  171,  pi.  2;  Select  Gas.  in  Ch.  74,  75. 

(m)  1  Mad.  Pr.  Ch.  139;  Hilton  v.  Lord  Scarborough,  2  Eq.  Abr.  171,  pi.  2. 
But  a  ferrynian,  having  an  exclusive  right  of  ferriage,  may  bring  a  bill  of  peace 
against  those  infringing  his  privilege.     Letton  v.  Gooden,  2  Eq.  123. 

(n)  See  Com.  Dig.  Chancery,  D.  13;  Earl  of  Bath  v.  Sherwin,  Prec.  Ch.  261; 
B.C.  10  Mod.  1. 

(o)  Earl  of  Bath  v.  Sherwin,  Prec.  Ch.  261;  s.c.  10  Mod.  1;  s.c.  2  Bro.  Pari.  C. 
217;  Leighton  v.  Leightm,  1  P.  Will.  671,  672. 


362  EQUITY    JURISPRUDENCE.  ■      [CH.    XXI. 

would  not  interfere  in  such  cases  before  a  trial  at  law;  nor  until  the 
right  had  been  satisfactorily  established  at  law.  But  if  the  right  were 
satisfactorily  established,  it  was  not  material  what  number  of  trials 
had  taken  place,  whether  two  only,  or  more  (p). 

§  860.  These  seem  to  be  the  only  classes  of  cases  in  which  bills  of 
peace,  technically  so  called,  will  lie.  But  there  are  other  cases  bear- 
ing a  close  analogy  to  them,  in  which  a  like  relief  is  granted;  as,  for 
instance,  cases  of  confusion  of  boundaries,  which,  however,  require 
some  superinduced  equity;  and  cases  of  quit-rents,  where  the  remedy 
at  law  is  either  lost  or  deficient.  Cases  of  mines  aad  collieries  may 
also  be  mentioned,  where  courts  of  equity  will  entertain  bills  in  the 
nature  of  bills  Qiiia  timet,  and  bills  of  peace,  where  there  is  danger 
that  the  mine  may  be  ruined  in  the  meantime,  before  the  right  can  be 
established;  and  upon  such  a  bill  the  court  will  grant  an  adequate 
remedy  by  quieting  the  party  in  enjoyment  of  his  right,  by  restoring 
things  to  their  old  condition,  and  by  establishing  the  right  by  a 
decree  (5).  Other  cases,  also,  where  the  object  of  the  bill  is  to  prevent 
vexatious  suits,  will  occur  under  the  head  of  Injunctions  (r). 

(p)  Devonsher  v.  Newenham,  2  Sch.  &  Lefr.  208,  209;  Leighton  v.  Leighton, 
1  P.  Will.  671,  672;  Lord  Tenham  v.  Herbert,  2  Atk.  483;  Earl  of  Darlington  v. 
Bowes,  1  Eden  270,  271,  272;  Weller  v.  Smeaton,  1  Cox  102;  s.c.  1  Bro.  Ch.  C.  573. 

(g)  Falmouth  {Lord)  v.  Innys,  Mos.  87,  89;  post,  §  929.  In  Bush  v.  Western, 
Preo.  Ch.  530,  the  plaintifiE  had  been  in  possession  of  a  watercourse  upwards  of  sixty 
years,  and  the  defendant  claimed  the  land  through  which  the  watercourse  ran,  under 
a  foreclosed  mortgage.  The  defendant  obstructed  the  watercourse,  and  the  plaintiff 
brought  a  bill  for  an  injunction  to  quiet  his,  the  plaintiff's,  possession,  and  it  was  held 
maintainable,  notwithstanding  there  was  a  remedy  at  law,  and  the  title  had  not  been 
established  at  law. 

(r)  Post,  §  §  925  to  930. 


§  860—863.]  INJUNCTIONS.  363 


CHAPTER    XXII. 

INJUNCTIONS. 

§  861.  The  last  subject  which  is  proposed  to  be  treated  under  the 
second  head  of  concurrent  equity  jurisdiction;  namely,  where  the 
peculiar  remedies,  afforded  by  courts  of  equity,  formerly  constituted 
the  principal  although  not  the  sole  ground  of  jurisdiction,  is  that  of 
Injunctions.  A  writ  of  injunction  is  now  abolished  and  is  replaced  by 
a  judgment  or  order  which  enjoins  a  party  to  do  a  particular  thing,  or 
to  refrain  from  doing  a  particular  thing  (a).  The  most  common  form 
of  a  writ  of  injunction  was  that  which  operated  as  a  restraint  upon  the 
party  in  the  exercise  of  his  real  or  supposed  rights ;  and  was  sometimes 
called  the  remedial  writ  of  injunction.  The  other  form,  commanding 
an  act  to  be  done,  was  sometimes  called  the  judicial  writ,  because  it 
issued  after  a  decree,  and  was  in  the  nature  of  an  execution  to  enforce 
the  same ;  as,  for  instance,  it  might  contain  a  direction  to  the  party 
defendant  to  yield  up,  or  to  quiet,  or  to  continue,  the  possession  of  the 
land,  or  other  property,  which  constituted  the  subject-matter  of  the 
decree  in  favour  of  the  other  party. 

§  862.  The  object  of  this  process,  which  was  most  extensively  used 
in  equity  proceedings,  was  generally  preventive  and  protective,  rather 
than  restorative ;  although  it  was  by  no  means  confined  to  the  former. 
It  sought  to  prevent  a  meditated  wrong  more  often  than  to  redress  an 
injury  already  done.  It  was  not  confined  to  cases  falling  within  the 
exercise  of  the  concurrent  jurisdiction  of  the  court-;  but  it  equally 
applied  to  cases  belonging  to  its  exclusive  and  to  its  auxiliary  jurisdic- 
tion. It  is  treated  of,  however,  in  this  place,  principally,  because  it 
formed  a  broad  foundation  for  the  exercise  of  concurrent  jurisdiction  in 
equity.  In  cases,  calling  for  such  redress,  there  was  always  a  prayer 
in  the  bill  for  this  process  and  relief;  and  hence,  bills  of  this  sort. were 
commonly  called  injunction  bills. 

§  863.  Indeed,  unless  an  injunction  were  specifically  prayed  for 
by  the  bill,  it  was  the  settled  practice  not  to  grant  this  remedial  pro- 
cess ;  because  (it  has  been  said)  the  defendant  might  make  a  difierent 
case  by  his  answer  against  the  general  words  of  the  bill,  from  what  he 
would  have  done  against  the  specific  prayer  for  an  injunction.     This, 

(a)  Rules  of  the  Supreme  Court,  1883,  0.  50,  r.  11.  See  Eden,  Injunctions;  Kerr, 
Injunctions. 


364.  EQUITY     JURISPRUDENCE.  [CH.  XXII. 

at  least,  constituted  an  exception  from  the  general  doctrine,  £is  to  the 
efficacy  of  the  prayer  for  general  reUef  (b).  The  Supreme  Court  in  all 
its  branches  has  now  jurisdiction  to  grant  an  injunction  in  all  cases  in 
which  it  shall  appear  to  the  court  to  be  "  just  or  convenient,"  by  force 
of  section  25,  sub-section  8  of  the  Judicature  Act,  1873  (36  &  37  Vict. 
a.  66),  and  the  general  effect  of  this  section  (shortly  stated)  is  to  leave 
the  old  practice  of  the  court  of  Chancery  respecting  the  granting  or 
-withholding  of  an  injunction  untouched  (c). 

§  864.  The  writ  of  injunction  was  peculiar  to  courts  of  equity, 
although  there  were  some  cases  where  courts  of  law  exercised  analo- 
gous powers;  such  as  by  the  writ  of  prohibition  and  estrepement  in 
cases  of  waste  (d).  The  cases,  however,  to  which  these  legal  processes 
were  applicable  were  so  few,  and  so  utterly  inadequate  for  the  purposes 
■of  justice,  that  the  processes  themselves  fell  into  disuse;  and  almost 
all  the  remedial  justice  of  this  sort  was  administered  through  the  in- 
strumentality of  courts  of  equity.  The  jurisdiction  in  these  courts, 
then,  had  its  true  origin  in  the  fact,  that  there  was  either  no  remedy 
at  all  at  law,  or  the  remedy  was  imperfect  and  inadequate.  The  juris- 
diction was  for  a  long  time  most  pertinaciously  resisted  by  the  courts 
of  common  law,  especially  when  it  was  applied  by  an  injunction  to 
stay  suits  and  judgments  in  these  courts.  But  it  was  firmly  estab- 
lished in  the  reign  of  King  James  I.  upon  an  express  appeal  to  that 
monarch. 

§  865.  It  has  been  justly  remarked  by  an  eminent  civilian,  that 
injunctions,  issued  by  the  courts  of  equity  in  England,  partook  of  the 
nature  of  interdicts  according  to  the  Roman  law  (e).  The  term  inter- 
dict was  used  in  the  Eoman  law  in  three  distinct,  but  cognate  senses. 
It  was,  in  the  first  place,  often  used  to  signify  the  edicts  made  by  the 
prsetor  declaratory  of  his  intention  to  give  the  remedy  in  certain  cases, 
chiefly  to  preserve  or  to  restore  possession.  And  hence  such  an  inter- 
dict was  called  edictal  :  "  Edictale,  quod  praetoriis  edictis  proponitur, 
ut  soiant  omnes  ea  forma  posse  imploriari. ' '  Again,  it  was  used  to 
signify  his  order  or  decree,  applying  the  remedy  in  the  given  case 
before  him;  and  then  it  was  called  decretal  :  "  Deere  tale,  quod  praetor 
pro  re  nata  implorantibus  decrevit. ' '  And  in  the  last  place  it  was  used 
to  signify  the  very  remedy  sought  in  the  suit  commenced  under  the 
praetor's  edict;  and  thus  it  became  the  denomination  of  the  action 
itself. 

(b)  Savory  v.  Dyer,  Ambler  60;  Cooke  v.  Martyn,  2  Atk.  3;  Grimes  v.  French, 
2  Atk.  141;  Dormer  v.  Fortescue,  3  Atk.  131;  Manaton  v.  Molesworth,  1  Eden  26- 
2  Mad.  Pr.  Ch.  173. 

(c)  James,  L.  J.,  Day  v.  Brownrigg,  10  Ch.  D.  at  p.  307;  Cotton,  L.  J.,  North 
London  Ry.  v.  G.  N.  Ry.,  11  Q.  B.  D.  at  p.  39;  A.  L.  Smith,  L.  J.,  Kitts  v.  Moore, 
[1895]  1  Q.  B.  264. 

(d)  In  the  case  of  Jefferson  v.  The  Bishop  of  Durham,  1  Bos.  &  Pul.  105,  120  to 
132,  the  subject  of  these  remedies  in  courts  of  law,  in  cases  of  waste,  is  very  learnedly 
discussed.  (e)  Halifax,  Eoman  Civil  Law,  ch.  6,  p.  102. 


§  864—868.]  INJUNCTIONS.  365 

§  866.  It  is  in  the  second  sense  above  stated,  that  the  interdict  of 
the  Eoman  law  bears  a  resemblance  to  the  injunction  of  courts  of 
equity.  It  is  said  to  have  been  called  interdict  because  it  was  origin- 
ally interposed  in  the  nature  of  an  interlocutory  decree  betv/een  two 
parties  contending  for  possession,  until  the  property  could  be  tried. 
But  afterwards  the  appellation  was  extended  to  final  decretal  orders, 
of  the  same  nature.  In  the  Institutes,  interdicts  are  thus  defined  : 
Interdicts  were  certain  forms  of  words,  by  which  the  praetor  either' 
commanded  or  prohibited  something  to  be  done ;  and  they  were  chiefly 
used  in  controversies  respecting  •  possession  or  quasi  possession. 
"  Erant  autem  interdicta  formae  atque  coneeptiones  verborum,  quibus- 
praetor  aut  jubebat  aliquid  fieri  aut  fieri  prohibebat.  Quod  tunc 
Maxime  flebat,  cum  de  possessione  aut  quasi  possessione,  inter  aliquos; 
contendebatur. "  (/).  They  were  divided  into  three  sorts,  prohibitory, 
restitutory,  and  exhibitory  interdicts.  Prohibitory  were  those  by 
which  the  praetor  forbade  something  to  be  done,  as  when  he  forbade 
force  to  be  used  against  a  lawful  possessor;  restitutory,  by  which  he 
directed  something  to  be  restored,  as  when  he  commanded  possession 
to  be  restored  to  any  one,  who  had  been  ejected  from  the  possession  by 
force ;  exhibitory,  by  which  he  ordered  a  person  or  thing  to  be  pro- 
duced (g).  After  this  definition  or  description  of  the  various  sorts  o£ 
interdicts,  the  Institutes  proceed  to  state  that  some  persons  neverthe- 
less have  supposed  that  those  only  can  be  properly  called  interdicts, 
which  were  prohibitory ;  because  to  interdict  is  properly  to  denounce 
and  prohibit ;  and  that  the  restitutory  and  exhibitory  interdicts  should 
properly  be  called  decrees.  But  that  by  usage  they  are  all  caljed  inter- 
dicts, because  they  are  pronounced  between  two  persons.  "  Sunt 
tamen  qui  putent,  propria  interdicta  ea  vocari,  quae  prohibitoria  sunt, 
quia  interdicere  sit  denuntiare  et  prohibere;  Eestitutoria  autem  et. 
exhibitoria,  proprie  decreta  vocari.  Sed  tamen  obtinuit,  omnia  inter- 
dicta appellari,  quia  inter  duos  dicuntur  "  (h). 

§  867.  Another  division  of  interdicts  in  the  Eoman  law  was  into 
those  which  were  (1)  to  gain  or  acquire  possession;  or  (2)  to  retain 
possession;  or  (3)  to  recover  possession  (i).  And  again,  another  divi- 
sion was  into  those  which  were  (1)  single,  in  which  each  of  the  litigant 
parties  sustained  one  character,  that  of  plaintiff  or  actor,  or  defendant 
or  reus ;  or  (2)  double,  in  which  each  of  the  litigant  parties  sustained 
two  characters,  that  of  plaintiff  or  actor,  and  that  of  defendant  or 
reus  (k). 

§  868.  From  this  summary  account  of  the  Eoman  interdicts,  whicli 
were,  after  a  time,  superseded    by    what   were    called    extraordinary 

(/)  Inst.  Lib.  4,  tit.  15,  Introd. 

(g)  Ibid.  §  1;  Halifax  on  Civil  Law,  ch.  6,  p.  101;  Dig.  Lib.  43,  tit.  1,  ff.  1,  2. 

(h)  Inst.  Lib.  4,  tit.  15,  §  1. 

(J)  Ibid.  §  §  2,  3,  4.   ■ 

(k)  Ibid.  §  7. 


366  EQUITY     JURISPRUDENCE.  [CH.   XXII. 

actions,  in  which  judgment  was  pronounced  without  any  antecedent 
interdict,  and  in  the  same  manner  as  if  a  beneficial  action  had  been 
given  in  consequence  of  an  interdict  (l),  it  is  easy  to  perceive  that  they 
partake  very  much  of  the  nature  of  injunctions  in  courts  of  equity, 
and  were  apphed  to  the  same  general  purposes ;  that  is  to  say,  to 
restrain  the  undue  exercise  of  rights,  to  prevent  threatened  wrongs, 
to  restore  violated  possessions,  and  to  secure  the  permanent  enjoy- 
ment of  the  rights  of  property. 

§  869.  In  the  early  course  of  chancery  proceedings,  injunctions  to 
quiet  the  possession  of  the  parties  before  the  hearing  were  indiscrim- 
inately granted  to  either  party,  plaintiff  or  defendant,  in  cases  where 
corporeal  hereditaments  were  the  subject  of  the  suit;  the  object  of 
them  being  to  prevent  a  forcible  change  of  possession  by  either  party 
pending  the  litigation  (m).  These  injunctions  bore  a  very  close  resem- 
blance to  the  interdict,  Uti  possidetis,  of  the  Eoman  law,  which  was 
granted  to  either  party  in  a  suit,  who  was  then  in  possession,  in  order 
that  he  might  be  secured  therein  as  the  legal  possessor  during  the 
litigation.  "  Hoc  interdictum  (Uti  possidetis)  de  soli  possessore 
scriptum  est,  quem  potiorem  praetor  in  soli  possessione  habebat;  et  est 
prohibitorium  ad  retinendam  possessionem  (n).  Est  igitur  hoc  inter- 
dictum, quod  vulgo  Uti  possidetis  appellatur,  retinendse  possessionis ; 
nam  hujus  rei  causa  redditur,  ne  vis  fiat,  ei,  qui  possidet  (o).  Hoc 
interdictum  duplex  est;  et  hi,  quibus  competit,  et  actores  et  rei 
-sunt "  (p). 

§  870.  The  interdict,  Unde  vi,  in  the  Eoman  law,  was  granted  to 
restore  a  possession  forcibly  taken  away;  whereas,  the  interdict,  Uti 
possidetis,  was  granted  to  preserve  a  present  possession.  "  lUud  (in- 
ierdictum  unde  vi),"  says  the  Digest,  "  enim  restituit  vi  amissam  pos- 
sessionem ;  hoc  (interdictum  uti  possidetis)  tuetur,  ne  amittatur 
possessio.  Denique  praetor  possidenti  vim  fieri  vetat;  et  illud  quidem 
interdictum  oppugnat  possessorem;  hoc  tuetur"  (q). 

§  871.  It  is  obviously  incompatible  with  the  object  of  these  Com- 
mentaries to  enumerate  in  detail  (even  if  such  a  ta.sk  were  practicable) 
the  various  cases  in  which  a  writ  of  injunction  was  formerly  granted 
by  the  courts  of  equity.  Many  cases  of  this  sort  have  already  been 
incidentally  taken  notice  of  in  the  preceding  pages;  and  others  again 
will  occur  hereafter.    What  is  proposed  to  be  done  in  this  place  is,  to 

(l)  Ibid.  §  8. 

(m)  2  Collect.  Jurid.  196;  Beames,  Ord.  ch.  15,  and  note  (49).  One  of  Lord 
Bacon's  Ordinances  (26)  is,  that  "Injunctions  for  possession  are  not  to  be  granted 
before  a  decree;  but  where  the  possession  hath  continued  by  the  space  of  three  years 
Toetoie  the  bill  exhibited;  and  upon  the  same  title,  and  not  upon  any  title  by  leave,  or 
rotherwise  determined."     Beames,  Ord.  ch.  15. 

(n)  Dig.  Lib.  43,  tit.  17,  f.  1,  §  1. 

(o)  Ibid.  f.  1,  §  4. 

(p)  Ibid.  I.  3,  §  1.  Proceedings  analogous  to  those  in  the  Roman  law  are  recog- 
nized in  the  Scottish  jurisprudence.    Ersk.  Inst.  p.  764,  §  47. 

(q)  Dig.  Lib.  43,  tit.  17,  f.  1,  §  4. 


§  869—873.]  INJUNCTIONS.  367 

enumerate  some  only  of  the  more  common  cases,  in  which  it  is  applied, 
rather  as  illustrations  of  the  nature  and  extent  of  the  jurisdiction,  than 
as  a  complete  analysis  of  it. 

§  872.  A  learned  writer  enumerated,  among  the  most  ordinary 
objects  of  the  remedial  writ  of  injunctions,  the  following :  "  To  restrain 
tile  indorsement  or  negotiation  of  notes  and  bills  of  exchange,  the  sale 
of  land,  the  sailing  of  a  ship,  the  transfer  of  stock,  or  the  alienation 
of  a  specific  chattel ;  to  prevent  the  wasting  of  assets  or  other  property 
pending  litigation ;  to  restrain  a  trustee  from  assigning  the  legal  estate, 
or  from  setting  up  a  term  of  years,  'or  assignees  from  making  a  divi- 
dend; to  prevent  the  removing  out  of  the  jurisdiction,  marrying  or 
having  any  intercourse,  which  the  court  disapproves  of,  with  a  ward ;  to 
restrain  the  commission  of  every  species  of  waste  to  houses,  mines, 
timber,  or  any  other  part  of  the  inheritance;  to  prevent  the  infringe- 
ment of  patents,  and  the  violation  of  copyright,  either  by  publication 
or  theatrical  representation;  to  suppress  the  continuance  of  public 
or  private  nuisances;  and  by  the  various  modes  of  interpleader, 
restraint  upon  multiplicity  of  suits,  or  quieting  possession  before  the 
hearing,  to  stop  the  progress"  of  vexatious  litigation. ' '  But  he  immedi- 
ately adds:  "  These,  however,  are  far  from  being  all  the  instances,  in 
which  this  species  of  equitable  interposition  is  obtained.  It  would, 
indeed,  be  difficult  to  enumerate  them  all ;  for  in  the  endless  variety  of 
cases,  in  which  a  plaintiff  is  entitled  to  equitable  relief,  if  that  relief 
consists  in  restraining  the  commission  or  the  continuance  of  some  act 
of  the  defendant,  a  court  of  equity  administers  it  by  means  of  the  writ 
of  injunction  "  (r). 

§  873.  The  illustrations  of  the  jurisdiction  which  will  be  attempted 
in  our  pages,  will  be  principally  limited  to  cases  of  injunctions  to 
restrain  the  alienation  of  property;  to  restrain  waste;  to  restrain 
nuisances ;  to  restrain  trespasses ;  and  to  prevent  other  irreparable  mis- 
chiefs. We  shall  then  add  some  few  instances  of  special  injunctions 
in  order  more  fully  to  develop  the  nature  and  extent  of  this  most 
beneficial  process  of  preventive  and  remedial  justice.  "  Injunctions  are 
either  interlocutory  or  perpetual.  Interlocutory  injunctions  are  such 
as  are  to  continue  until  the  hearing  of  the  cause  upon  its  merits  or 
generally  until  further  order.  Perpetual  injunctions  are  such  as  form 
part  of  the  decree  made  at  the  hearing  upon  the  merits,  whereby  the 
defendant  is  perpetually  inhibited  from  the  assertion  of  a  right,  or  per- 
petually restrained  from  the  commission  of  an  act  which  would  be 
contrary  to  equity  and  good  conscience.  The  perpetual  injunction  is  in 
effect  a  decree,  and  concludes  a  right.  The  interlocutory  injunction  is 
merely  provisional  in  its  nature,  and  does  not  conclude  a  right.  The 
effect  and  object  of  the  interlocutory  injunction  is  merely  to  preserve 
the  property  in  dispute  in  statu  quo  until  the  hearing  or  further  order. 

(r)  Eden  on  Injunct.  ch.  1,  pp.  1,  2.    See  also  1  Mad.  Ch.  Pr.  106. 


368  EQUITY     JURISPRUDENCE.  [CH.  XXII. 

In  interfering  by  interlocutory  injunction,  the  court  does  not,  in 
general,  profess  to  anticipate  the  determination  of  the  right,  but  merely 
gives  it  as  its  opinion  that  there  is  a  substantial  question  to  be  tried, 
and  that,  till  the  question  is  ripe  for  trial,  a  case  has  been  made  out  for 
the  preservation  of  the  property  in  the  meantime  in  statu  quo.  A  man 
who  comes  to  the  court  for  an  interlocutory  injunction  is  not  required 
to  make  out  a  case  which  will  entitle  him  at  all  events  to  relief  at  the 
hearing.  It  is  enough  if  he  can  show  that  he  has  a  fair  question  to 
raise  as  to  the  existence  of  the  right  which  he  alleges,  and  can  satisfy 
the  court  that  the  property  shoilld  be  preserved  in  its  present  actual 
condition,  until  such  question  can  be  disposed  of"  (s). 

§  873a..  When  the  learned  author  wrote,  and  for  many  years  there- 
after, the  Court  of  Chancery  restrained  proceedings  pending  in  common 
law  and  other  courts  by  means  of  an  injunction.  As  regards  the  institu- 
tion of  proceedings,  it  has  been  held  that  the  Chancery  Division  still 
has  jurisdiction  to  restrain  a  party  from  so  acting  (t).  But  it  is  now 
enacted  by  the  Judicature  Act,  1878,  s.  24,  sub-s.  5  of  which  pro- 
vided : — No  cause  or  proceeding  at  any  time  pending  in  the  High  Court 
of  Justice,  or  before  the  Court  of  Appeal,  shall  be  restrained  by  pro- 
hibition or  injunction;  but  every  matter  of  equity  on  which  an  injunction 
against  the  prosecution  of  any  such  cause  or  proceeding  might  have 
been  obtained,  if  this  Act  had  not  passed,  either  unconditionally,  or  on 
any  terms  or  conditions,  may  be  relied  on  by  way  of  defence  thereto; 
Provided  always,  that  nothing  in  this  Act  contained  shall  disable  either 
of  the  said  courts  from  directing  a  stay  of  proceedings  in  any  cause  or 
matter  pending  before  it  if  it  shall  think  fit;  and  any  person,  whether 
a  party  or  ijot  to  any  such  cause  or  matter,  who  would  have  been 
entitled,  if  this  Act  had  not  passed,  to  apply  to  any  court  to  restrain 
the  prosecution  thereof,  or  who  may  be  entitled  to  enforce,  by  attach- 
ment or  otherwise,  any  judgment,  decree,  rule,  or  order,  contrary  to 
which  all  or  any  part  of  the  proceedings  in  such  cause  or  matter  may 
have  been  taken,  shall  be  at  liberty  to  apply  to  the  said  courts  respec- 
tively, by  motion  in  a  summary  way,  for  a  stay  of  proceedings  in  such 
cause  or  matter,  either  generally  or  so  far  as  may  be  necessary  for  the 
purposes  of  justice ;  and  the  court  shall  thereupon  make  such  order  as 
shall  be  just  (m).  And  by  other  provisions  of  the  same  section  matters 
may  be  raised,  by  way  of  defence  or  substantive  application,  so  that 
the  general  policy  of  the  act  may  be  effected,  and  all  matters  in  con- 
troversy between  the  parties  may  be  completely  and  finally  determined, 
and  all  multiplicity  of  legal  proceedings  concerning  any  of  such  matters 
avoided. 

§  899.  It  has  sometimes  been  made  a  question  whether  courts  of 
equity  have   authority  to   st-ay  proceedings   in   the   courts   of   foreign^ 

(s)  Kerr  on  Injunctions,  3rd  edit.  pp.  9,  10. 

(t)  Besant  v.  Wood,  12  Ch.  D.  605. 

(«)  See  Wright  v.  Redgrave,  11  Ch.  D.  24. 


§  873(t— 906.]  INJUNCTIONS.  369 

countries.  Nothing  can  be  clearer  than  the  proposition  that  the  courts 
of  one  country  cannot  exercise  any  control  or  superintending  authority 
over  those  of  another  country.  The  independence,  equality,  and 
sovereignty  of  every  country  would  repudiate  any  such  interference  as 
inconsistent  with  its  own  supremacy  within  its  own  territorial  domains. 
But  although  the,  courts  of  one  country  have  no  authority  to  stay  pro- 
ceedings in  the  courts  of  another,  they  have  an  undoubted  authority  to 
control  all  persons  and  things  within  their  own  territorial  limits.  When, 
therefore,  both  parties  to  a  suit  in  a  foreign  country  are  resident  within 
the  territorial  limits  of  another  country,  the ,  coiurts  of  equity  in  the 
latter  may  act  in  personam  upon  those  parties,  and  direct  them,  by 
injunction,  to  proceed  no  farther  in  such  suit.  In  such  a  case  these 
courts  act  upon  acknowledged  principles  of  public  law  in  regard  to 
jiurisdiction.  They  do  not  pretend  to  direct  or  control  the  foreign  court, 
but,  without  regard  to  the  situation  of  the  subject-matter  of  the  dispute, 
they  consider  the  equities  between  the  parties,  and  decree  in  persondm 
according  to  those  equities,  and  enforce  obedience  to  their  decrees  by 
process  in  ■personann.  Hence,  the  jurisdiction  of  courts  of  equity  to 
relieve,  in  cases  of  contracts  and  other  matters,  respecting  lands 
situated  in  foreign  countries  (a;).  But  although  the  jurisdiction  may 
exist,  it  is  only  exercised  with  the  greatest  caution  and  under  such 
limitations  as  to  render  it  practically  non-existent  (i/).  Jurisdiction  is 
only  exercised  where  there  is  some  personal  equity  as  fraud  {z),  or  a 
money  claim  as  in  the  case  of  waste  (a),  or  an  equitable  right  as  in  the 
case  of  a  mortgage  (6).  Generally  speaking  the  pendency  of  proceed- 
ings before  a  foreign  tribunal  is  a  reason  for  staying  proceedings  in  this, 
unless  the  relief  obtainable  in  each  forum  is  not  identical  (c). 

§  905.  In  the  next  place,  let  us  proceed  to  the  consideration  of  the 
granting  of  injunctions  to  restrain  the  alienation  of  property  in  the 
largest  sense  of  the  words.  The  propriety  of  this  sort  of  relief  will  at 
once  be  seen,  by  considering  a  very  few  cases,  in  which  it  is  indispen- 
sable to  secure  the  enjoyment  of  a  specific  property ;  or  to  preserve  the 
title  to  such  property;  or  to  prevent  frauds  or  gross  and  irremediable 
injustice  in  respect  to  such  property. 

§  906.  In  regard  to  negotiable  securities,  if  transferred  to  a  bond 
fide  holder  without  notice,  the  latter  would  be  entitled  to  recover  upon 
them,  notwithstanding  any  fraud  in  their  original  concoction,  or  the  loss 

(x)  Penn  v.  Lord  Baltimore,  1  Ves.  Sen.  444. 

(y)  Carron  Iron  Co.  v.  Madaren,  5  H.  L.  C.  416;  In  te  Hawthorne,  Graham  v. 
Massey,  23  Ch.  D.  743;  Eastern  Concessions,  Ltd.  v.  Black  Point  Syndicate,  79  L.  T. 
638;  Deschamps  v.  Miller,  [1908]  1  Ch.  856.  For  a  history  of  the  establishment  of 
the  jurisdiction  see  Lord  Portarlington  v.  Soulby,  3  M.  &  K.  104. 

(z)  Lord  Portarlington  v.  Soulby,  3  M.  &  K.  104. 

(a)  Carteret  v.  Petty,  2  Swanst.  323  n. 

(6)  British  South  Africa  Co.  v.  De  Beers  Consolidated  Mines,  [1910]  2  Ch.  502; 
reversed  on  other  grounds  [1912]  A.  C.  52. 

(c)  Ostell  V.  Le  Page,  2  De  G.  M.  &  G.  892;  Noriss  v.  Chambers,  3  De  G.  P 
&  J.  246 ;  Hyman  v.  Helm,  24  Ch.  D.  531. 

E.J.  24 


370  EQUITY    JURISPRUDENCE.  [CH.  XXII. 

of  them  by  the  real  owner,  it  is  therefore  often  indispensable  to  the 
security  of  the  party,  against  whose  rights  they  may  be  thus  made 
available,  to  obtain  an  injunction  prohibiting  any  such  transfer  (d). 

§  907.  The  same  principle  is  applied  to  restrain  the  transfer  of 
stocks.  Thus,  for  instance,  where  there  is  a  controversy  respecting 
the  title  to  stock  under  different  wills,  an  injunction  will  be  granted 
to  restrain  any  transfer  pendente  lite  (e).  So,  an  injunction  will  be 
granted  where  the  title  to  stock  is  controverted  between  principal 
and  agent  (/) ;  or  where  a  trustee  or  agent  attempts  to  transfer  it  for 
hia  own  benefit,  and  to  the  injury  of  the  party  beneficially  entitled 
to  it  (g).  So,  also,  to  restrain  the  payment  of  money,  where  it  is 
injurious  to  the  party  to  whom  it  belongs ;  or  where  it  is  in  violation 
of  the  trust  to  which  it  should  be  devoted  Qi).  So,  too,  to  restrain 
the  transfer  of  diamonds  or  other  valuables,  where  the  rightful  owner 
may  be  in  danger  of  losing  them  (t). 

,  §  908.  In  like  manner  an  injunction  will  be  granted  to  restrain  a 
party  from  making  vexatious  alienations  of  real  property,  pendente 
lite  (k).  So,  also,  to  restrain  a  vendor  from  conveying  the  legal  title  of 
real  estate  pending  an  action  for  the  specific  performance  of  a  contract 
for  the  sale  of  that  estate  (I).  For,  in  every  such  case,  the  plaintiff 
may  be  put  to  the  expense  of  making  the  vendee  a  party  to  the  pro- 
ceedings ;  and,  at  all  events,  his  title,  if  he  prevails  in  the  action,  may 
be  embarrassed  by  such  new  outstanding  title  under  the  transfer  (w). 
Although  the  maxim  is.  Pendente  lite  nil  innovetur,  that  maxim  is 
not  to  be  understood  as  warranting  the  conclusion,  that  the  conveyance 
so  made  is  absolutely  null  and  void  at  all  times,  and  for  all  purposes. 
The  true  interpretation  of  the  maxim  is,  that  the  conveyance  does  not 
vary  the  rights  of  the  parties  in  that  action;  and  they  are  not  bound 
to  take  notice  of  the  title  acquired  under  it;  but  with  regard  to  them 
the  title  is  to  be  taken  as  if  it  had  never  existed.  Otherwise,  actions 
would  be  indeterminable,  if  one  party,  pending  the  suit,  could,  by 
conveying  to  others,  create  the  necessity  for  introducing  new  parties  (n). 
§  909.  In  the  next  place,  let  us  proceed  to  the  consideration  of 
injunctions  in  the  oases  of  waste  (o).  The  state  of  the  common  law 
with  regard  to  waste  was  very  learnedly  expounded  by  Lord  Chief 

{d}  Hood  v.  Aston,  1  Euss.  412. 

(e)  King  v.  King,  6  Vea.  172. 

(J)  Ghedworth  v.  Edwards,  8  Ves.  46. 

ig)  Stead  v.  Clay,  1  Sim.  294;  4  Euss.  550;  Rogers  v.  Rogers,  1  Anst.  174. 

(h)  Reeve  v.  Parkins,  2  Jac.  &  Walk.  390;  Green  v.  Lowes,  3  Bro.  C.  C.  217; 
Pearce  v.  Piper,  17  Vea.  1. 

(»)  Ximines  v.  Franco,  1  Dick.  149 ;  Tonnins  v.  Prout,  1  Dick.  387. 

(ft)  Daly  v.  Kelly,  4  Dow  440  ;  ante,  §  406  ;  post,  §  953. 

(/)  Echliff  V.  Baldwin,  16  Ves.  267 ;  London  and  County  Bank  v  Lewis,  21  Ch 
D.  460. 

(m)  Echliif  V.  Baldwin,  16  Ves.  267. 

(n)  Ante,  §  §  405,  406;  Bellamy  v.  Sabine,  1  De  G.  &  J.  566. 

(o)  See  Com.  Dig.  Chancery,  11  D.  4  X.  . 


§  907—909.]  INJUNCTIONS.  371 

Justice  Eyre,  in  a  celebrated  case  (p) ;  and  it  can  be  best  stated  in  his 
own  words.  "  At  common  law  "  (said  he)  "  the  proceeding  in  waste 
was  by  writ  of  prohibition  from  the  Court  of  Chancery,  which  was 
considered  as  the  foundation  of  a  suit  between  the  party  suffering 
by  the  waste  and  the  party  committing  it.  If  that  writ  was  obeyed, 
the  ends  of  justice  were  answered.  But,  if  that  was  not  obeyed, 
and  an  alias  and  pluries  produced  no  effect,  then  came  the  original 
writ  of  attachment  out  of  chancery,  returnable  in  a  court  of  common 
law,  which  was  considered  as  the  original  writ  •  of  the  court.  The 
form  of  that  writ  shows  the  nature  of  it.  It  was  the  same  original 
writ  of  attachment,  which  was,  and  is,  the  foundation  of  all  pro- 
ceedings in  prohibition,  and  of  many  other  proceedings  in  this  court 
at  this  day,  &c.  That  writ  being  returnable  in  a  court  of  common 
law,  and  most  usually  in  the  Court  of  Common  Pleas,  on  the  defendant 
appearing,  the  plaintiff  counted  against  him ;  he  pleaded ;  the  question 
was  tried ;  and,  if  the  defendant  was  found  guilty,  the  plaintiff  recovered 
single  damages  for  the  waste  committed.  Thus  the  matter  stood  at 
common  law.  It  has  been  said  (and  truly  so,  I  think,  so  far  as  can 
be  collected  from  the  text-writers)  that  at  the  common  law,  this  pro- 
ceeding lay  only  against  tenant  in  dower,  tenant  by  the  curtesy,  and 
guardian  in  chivalry;  it  was  extended,  by  different  statutes  (stat.  of 
Marlbridge,  c.  24;  stat.  of  Gloucester,  c.  5),  to  farmers,  tenants  for 
life,  and  tenants  for  years,  and,  I  believe,  to  guardians  in  socage  (g). 
That  which  these  statutes  gave  by  way  of  remedy  was  not  so  properly 
the  introduction  of  a  new  law  as  the  extension  of  an  old  one  to  a,  new 
description  of  persons.  The  course  of  proceeding  remained  the  same  as 
before  these  statutes  were  made.  The  first  Act  which  introduced  any- 
thing substantially  new  was  that  (stat.  of  Gloucester,  c.  13)  which  gave 
a  writ  or  waste  or  estrepement ,  pending  the  suit.  It  follows,  of  course, 
that  this  was  a  judicial  writ,  and  was  to  issue  out  of  the  courts  of 
common  law.  But,  except  for  the  purpose  of  staying  proceedings 
pending  a  suit,  there  is  no  intimation  in  any  of  our  text-writers  that 
any  prohibition  could  issue  from  those  courts.  By  the  statute  of  West- 
minster 2nd,  the  writ  of  prohibition  is  taken  away,  and  the  writ  of 
summons  is  substituted  in  its  place;  and,  although  it  is  said  by  Lord 
Coke,  when  treating  of  prohibition  at  the  common  law,  that '  it  may  be 
used  at  this  day;'  those  words,  if  true  at  all,  can  only  apply  to  that  very 
ineffectual  writ,  directed  to  the  sheriff,  empowering  him  to  take  the 
posse  comitatus,  to  prevent  the  commission  of  waste  intended  to  be 
done.  The  writ,  directed  to  the  party,  was  certainly  taken  away  by  the 
statute.  At  least,  as  far  as  my  researches  go,  no  such  writ  has 
issued,  even  from  chancery,  in  the  common  cases  of  waste  by  tenants 

(p)  Jefferson  v.  Bishop  of  Durham,  1  Bos.  &  Pul.  120. 

(g)  Mr.  Eeeves  (Hist,  of  the  Law,  vol.  1,  p.  186;  vol.  2,  pp.  73,  74,  148,  note) 
seems  to  suppose  that  these  statutes  were  but  an  affirmance  of  the  common  law.  In 
this  opinion  he  is  opposed  by  Lord  Coke  and  other  great  authorities. 


372  EQUITY     JURISPRUDENCE.  [CH.   XXII. 

in  dower,  tenants  by  the  curtesy,  and  guardians  in  chivalry,  tenants 
for  life,  &o.  &c.,  since  it  was  taken  away  by  the  statute  of  Westminster 
2nd.  Thus  the  common-law  remedy  stood,  with  the  alteration  above 
mentioned,  and  with  the  judicial  writ  of  estrepement  introduced 
pendente  lite  "  (r). 

§  910.  To  this  luminous  exposition  of  the  state  of  the  common  law, 
it  may  be  added,  that  there  was,  by  the  common  law,  another  remedy 
of  a  preventive  nature  in  the  writ  of  estreptement.  This  lay  after  a 
judgment  obtained  in  a  real  action,  before  possession  was  delivered  by 
the  sheriff,  to  prevent  the  tenant  from  committing  waste  in  the  lands 
recovered  (s).  And  the  statute  of  Gloucester  (6  Edw.  1,  c.  5),  which 
gave  the  writ  of  estrepement  pendente  lite,  also  directed  (c.  5)  that 
the  tenant  should  forfeit  the  place  wasted,  and  also  treble  damages  (t). 

§  911.  The  remedy  by  writ  of  estrepement  was  applicable  only  to 
cases  of  real  actions;  and,  when  the  proceeding  by  ejectment  became 
the  usual  mode  of  trying  a  title  to  land,  as  the  writ  of  estrepem,ent 
did  not  apply,  courts  of  equity,  acting  upon  the  principle  of  preserving 
the  property,  pendente  lite,  supplied  the  defect,  and  interposed  by 
way  of  injunction  (w).    Eeal  actions  are  now  abolished  by  statute. 

§  912.  But  courts  of  equity  have,  by  no  means,  limited  themselves 
to  an  interference  in  cases  of  this  sort.  They  have,  indeed,  often 
interfered  in  restraining  waste  by  persons  having  limited  interests  in 
property,  on  the  mere  ground  of  the  common-law  rights  of  the  parties, 
and  the  diflSculty  of  obtaining  the  immediate  preservation  of  the 
property  from  destruction  or  irreparable  injury,  by  the  process  of  the 
common  law.  But  they  have  also  extended  this  salutary  relief  to  cases 
where  the  remedies  provided  in  the  courts  of  common  law  could  not  be 
made  to  apply;  and,  where  the  titles  of  the  parties  were  purely  of  an 
equitable  nature;  and,  where  the  waste  was,  what  was  commonly, 
although  with  no  great  propriety  of  language,  called  equitable  waste  (a;) ; 
meaning  acts  which  were  deemed  waste  only  in  courts  of  equity;  and 
where,  as  we  have  already  seen,  no  waste  had  been  actually  committed, 
but  was  only  meditated  or  feared  to  be  done  by  a  bill  Quia  timet  {y). 

§  913.  In  order  to  show  the  beneficial  nature  of  the  remedial  inter- 
ference of  courts  of  equity  in  cases  of  waste,  it  may  not  be  without 
use  to  suggest  a  few  oases  where  it  was  indispensable  for  the  purposes 
of  justice,  and  there  was  either  no  remedy  at  all  at  law,  or  none  which 
is  adequate.    In  the  first  place,  there  were  many  cases  where  a  person 

(r)  Jefferson  v.  Bishop  of  Durham,  1  Bos.  &  Pul.  120;  Harrow  School  v.  Alder- 
ton,  2  Boa.  &  P.  86. 

(s)  Com.  Dig.  Waste,  A.,  B. ;  Fitz.  Nat.  Brev.  60;  3  Black.  Comm.  225  to  227. 

(t)  Com.  Dig.  Waste,  0.  1;  itl.  Chancery,  D.  11 ;  2  Inst.  299;  3  Black.  Comm. 
227  to  299. 

(u)  Pultney  v.  Shelton,  5  Ves.  261,  note;  3  Black.  Comm.  227. 

(x)  Marquis  of  Downshire  v.  Lady  Sandys,  6  "Ves.  109;  Chamberlain  v.  Dummer 
1  Bro.  C.  C.  166;  post,  §  916. 

iy)  Ante,  §  §  825  to  846. 


§  910—915.]  INJUNCTIONS.  373, 

was  dispunishable  at  law  for  committdng  waste,  aaid  yet  a  court  of 
equity  would  enjoin  him.  As,  where  there  is  a  tenant  for  life,  remainder 
for  life,  remainder  in  fee,  the  tenant  for  life  will  be  restrained,  by 
injunction,  from  committing  waste ;  although,  if  he  did  commit  waste, 
no  action  of  waste  would  have  lain  against  him  at  common  law  by  the 
remainderman  for  life,  for  he  has  not  the  inheritance,  or  by  the 
remainderman  in  fee,  by  reason  of  the  interposed  remainder  for  life  («). 
But  for  permissive  waste,  there  is  no  remedy  against  a  tenant  for  life 
either  at  law  or  in  equity  (a).  So,  a  ground  landlord  may  have  an 
injunction  to  stay  waste  against  an  under-lessee  (b).  So,  an  injunction 
may  be  obtained  against  a  tenant  from  year  to  year,  after  a  notice  to 
quit,  to  restrain  him  from  removing  the  crops,  manure,  &c.,  according 
'  to  the  usual  course  of  husbandry  (c).  So,  it  may  be  obtained  against  a 
lessee,  to  prevent  him  from  making  material  alterations  in  a  dwelling- 
house,  to  the  damage  of  the  inheritance,  but  not  otherwise  (d). 

§  914.  In  the  next  place,  courts  of  equity  will  grant  an  injunction 
in  cases  where  the  aggrieved  party  has  equitable  rights  only;  and, 
indeed,  it  has  been  said,  that  these  courts  will  grant  it  more  strongly 
where  there  is  a  trust  estate  (e).  Thus,  for  instance,  in  cases  of  mort- 
gages, if  the  mortgagor  in  possession  commits  waste,  or  threatens  to 
commit  it,  an  injunction  wiU-  be  granted,  if  the  security  be  deficient  (/), 
and  in  the  converse  case  would  enjoin  a  mortgagee  if  his  security  were 
admittedly  sufficient  {g),  yet  there  was  no  remedy  at  common  law. 
So,  where  there  is  a  contingent  estate,  or  an  executory  devise  over, 
dependent  upon  a  legal  estate,  coinrts  of  equity  will  not  permit  waste 
to  be  done  to  the  injury  of  such  estate ;  more  especially  not,  if  it  is  an 
executory  devise  of  a  trust  estate  (h). 

§  915.  In  the  next  place,  in  regard  to  equitable  waste,  which  may 
be  defined  to  be  such  acts  as  at  law  would  not  be  esteemed  to  be  waste, 
tinder  the  circumstances  of  the  ease,  but  which,  in  the  view  of  a  court  of 
equity,  are  so  esteemed,  from  their  manifest  injury  to  the  inheritance, 
although  they  are  not  inconsistent  with  the  legal  rights  of  the  party 
committing  them.  As,  if  there  be  a  tenant  for  life  without  impeach- 
ment for  waste,  and  he  should  pull  down  houses,  or  do  other  waste 
wantonly  and  maliciously,  a  court  of  equity  would  restrain  him;  for, 
it  is  said,  a  court  of  equity  ought  to  moderate  the  exercise  of  such  a 

{z)  Garth  v.  Cotton,  1  Dick.  183 ;  s.c.  1  Ves.  555. 

(o)  Powis  V.  Blagrave,  i  De  G.  M.  &  Gr.  484;  In  re  Gartwright,  Avis  v.  Newman, 
41  Ch.  D.  -532. 

(b)  Farrant  v.  Lovell,  3  Atk.  723;  s.c.  Ambler,  105. 

(c)  Kimpton  v.  Eve,  2  V.  &  B.  349;  Pratt  v.  Brett,  2  Mad.  62. 

(d)  Jones  v.  Chappie,  L.  E.  2  Eq.  539 ;  Doherty  v.  Allman,  3  App.  Gas.  709. 

(e)  StansfieU  v.  Habergham,  10  Ves.  273;  Turner  v.  Wright,  2  De  G.  P.  &  J. 
234.    See  Blake  v.  Peters,  1  De  G.  J.  &  S.  345. 

(/)  Humphreys  v.  Harrison,  1  J.  &  W.  581;  King  v.  Smith,  2  Hare,  239. 
(g)  See  Row&  v.  Wood,  2  J.  &  W.  553;  Millett  v.  Davy,  31  Beav.  470. 
(h)  Stansfield  v.  Habergham,  10  Ves.  278. 


374  EQUITY     JURISPEUDENCE.  [CH.   XXII. 

power,  .and,  pro  bono  publico,  restrain  extravagant  humorous  waste  (i). 
Upon  this  ground,  tenants  for  hfe  without  impeachment  for  waste,  and 
tenants  in  tail,  after  possibility  of  issue  extinct,  have  been  restrained, 
not,  only  from  acts  of  waste  to  the  destruction  of  the  estate,  but  also 
from  cutting  down  trees  planted  for  the  ornament  or  shelter  of  the 
premises  (fe),  even  if  planted  by  the  tenant  for  life  himself  (i).  So, 
a  tenant  for  life,  without  impeachment  of  waste,  has  been  restrained 
from  cutting  timber  where  certain  trustees  had  powers  inconsistent  with 
his  right,  and  to  which  it  was  expressly  made  subject  (m).  In  all  such 
cases  the  party  is  deemed  guilty  of  a  wanton  and  unconscientious  abuse 
of  his  rights,  ruinous  to  the  interests  of  other  parties. 

§  915<3..  By  the  3rd  paragraph  of  s.  25  of  the  Judicature  Act,  1873, 
it  is  provided  that  an  estate  for  life,  without  impeachment  of  waste, 
shall  not  confer,  or  be  deemed  to  have  conferred,  upon  the  tenant  for 
life,  any  legal  right  to  commit  waste  of  the  description  known  as  equit- 
able waste,  unless  an  intention  to  confer  such  right  shall  expressly 
appear  by  the  instrument  creating  the  estate. 

§  916.  Upon  similar  grounds,  although  courts  of  equity  will  not 
interfere  by  injunction  to  prevent  waste  in  cases  of  tenants  in  com- 
mon, or  coparceners,  or  joint-tenants,  because  they  have  a  right  to 
enjoy  the  estate  as  they  please ;  yet  they  will  interfere  in  special  cases; 
as,  where  the  party  committing  the  waste  is  insolvent;  or,  where  the 
waste  is  destructive  of  the  estate,  and  not  within  the  usual  legitimate 
exercise  of  the  right  of  enjoyment  of  the  estate  (n). 

§  917.  From  this  very  brief  view  of  some  of  the  more  important 
cases  of  equitable  interference  in  oases  of  waste,  the  inadequacy  of 
the  remedy  at  common  law,  as  well  to  prevent  waste,  as  to  give  redress 
for  waste  already  committed,  was  so  unquestionable,  that  there  is  no 
wonder  that  the  resort  to  the  courts  of  law,  in  a  great  measure,  fell 
into  disuse.  The  action  of  waste  was  of  rare  occurrence  in  later 
times  (o) ;  an  action  on  the  case  for  waste  being  generally  substituted 
in  its  place,  whenever  any  remedy  was  sought  at  law.  The  remedy 
in  equity  was  so  much  more  easy,  expeditious,  and  complete,  that  it 
was  almost  invariably  resorted  to.  By  such  remedy,  not  only  could 
future  waste  be  prevented,  but,  as  we  have  already  seen,  an  account 
might  be  decreed,  and  compensation  given  for  past  waste  (p). 

(t)  Abraham  v.  Budd,  2  Freem.  Ch.  63;  Lord  Barnard's  Case,  Prec.  Ch.  451,- 
Aston  V.  Aston,  1  Ves.  Sen.  268. 

(k)  Marquis  of  Downshire  v.  Lady  Sandys,  6  Ves.  107;  Att.-Gen.  v.  Duke  of 
Marlborough,  3  Mad.  498;  Newdigate  v.  Newdigate,  1  CI.  &  P.  601. 

(!)  Coffin  V.  Coffin,  1  Jac.  70. 

(m)  Kekewich  v.  Marker,  3  Mae.  &  G.  311. 

(n)  Smallman  v.  Onions,  3  Bro.  C.  C.  621;  Hole  v.  Thomas,  7  Ves.  589;  Arthur 
V.  Lamb,  2  Dr.  &  Sm.  428;  Bailey  v.  Hobson,  L.  R.  5  Ch.  180. 

(o)  Harrow  School  v.  Alderton,  2  Bos.  &  Pul.  86;  Redfem  v.  Smith,  1  Bing.  382; 
2  Bing.  262. 

(p)  Ante,  §  §  515  to  618. 


§  915a — 921.]  INJUNCTIONS.  375 

§  918.  The  interference  of  courts  of  equity  in  restraint  of  waste 
was  originally  confined  to  cases  founded  in  privity  of  title;  and  for 
the  plaintiff  to  state  a  case,  in  which  the  defendant  pretended  that 
the  plaintiff  was  not  entitled  to  the  estate,  or  in  which  the  defendant 
was  asserted  to  claim  under  an  adverse  right,  was  said  to  be,  for  the 
plaintiff  to  state  himself  out  of  court.  But  at  present  the  courts 
have,  by  insensible  degrees,  enlarged  the  jurisdiction  to  reach  cases 
of  adverse  claims  and  rights,  not  founded  in  privity ;  as,  for  instance, 
to  cases  of  trespass,  attended  with  irreparable  mischief,  which  we 
shall  have  occasion  hereafter  to  consider  (q). 

§  919.  The  jurisdiction,  then,  of  courts  of  equity,  to  interpose,  by 
way  of  injunction,  in  cases  of  waste,  may  be  referred  to  the  broadest 
principles  of  social  justice.  It  is  exerted,  where  the  remedy  at  law  is 
imperfect,  or  is  wholly  denied;  where  the  nature  of  the  injury  is  such 
that  a  preventive  remedy  is  indispensable,  and  it  should  be  permanent; 
where  matters  of  discovery  and  account  are  incidental  to  the  proper 
relief ;  and  where  equitable  rights  and  equitable  injuries  call  for  redress, 
to  prevent  a  malicious,  wanton,  and  capricious  abuse  of  their  legal 
rights  and  authorities  by  persons  having  but  temporary  and  limited 
interests  in  the  subject-matter.  On  the  other  hand,  courts  of  equity 
will  often  interfere  in  cases  where  the  tenant  in  possession  is  impeach- 
able for  waste,  and  direct  timber  to  be  felled,  which  is  fit  to  be  cut,  if 
in  danger  of  running  into  decay,  and  thus  will  secure  the  proceeds  for 
the  benefit  of  those  who  are  entitled  to  it  (r). 

§  920.  In  the  next  place,  let  us  proceed  to  the  consideration  of  the 
granting  of  injunctions  in  cases  of  nuisances.  Nuisances  may  be  of 
two  sorts :  (1)  such  as  are  injurious  to  the  public  at  large,  or  to  public 
rights;  (2)  such  as  are  injurious  to  the  rights  and  interests  of  private 
persons. 

§  921.  In  regard  to  public  nuisances,  the  jurisdiction  of  courts  of 
equity  seems  to  be  of  a  very  ancient  date;  and  has  been  distinctly 
traced  back  to  the  reign  of  Queen  Elizabeth  (s).  The  jurisdiction  is 
applicable,  not  only  to  public  nuisances,  strictly  so  called,  but  also  to 
purprestures  upon  pubUc  rights  and  property.  Purpresture,  according 
to  Lord  Coke,  signifies  a-  close,  or  inclosure,  that  is,  when  one  en- 
croaches, or  makes  that  several  to  himself  which  ought  to  be  common 
to  many  (t).  The  term  was,  in  the  old  law  writers,  applied  to  cases 
of  encroachment,  not  only  upon  the  King,  but  upon  subjects.  But, 
in  its  common  acceptation,  it  is  now  understood  to  mean  an  encroach- 
ment upon  the  King,  either  upon  part  of  his  demesne  lands,  or  upon 
rights  and  easements  held  by  the  Crown  of  the  public,  such  as  upon 

(g)  Haigh  v.  Jaggar,  2  CkiU.  231 ;  Earl  Talbot  v.  Scott,  4  Kay  &  J.  96. 
(r)  Peters  v.  Blake,  6  L.  J.  Ch.  157 ;  Honywood  v.  Honywood,  L.  E.  18  Eq.  306 ; 
Seagrave  v.  Knight,  L.  B.  2  Ch.  628. 

(s)  Eden  on  Injunct.  ch.  11,  pp.  224,  225. 
(t)  2  Inst.  38,  272. 


376  EQUITY     JURISPRUDENCE.  [CH.   XXII. 

highways,  public  rivers,  forts,  streets,  squares,  bridges,  quays,  and 
other  public  accommodations  (u). 

922.  In  cases  of  purpresture,  the  remedy  for  the  Crown  is  either 
by  an  information  of  intrusion  at  the  common  law,  or  by  an  information 
at  the  suit  of  the  Attorney-General  in  equity.  In  the  case  of  a  judg- 
ment upon  an  information  of  intrusion,  the  erection  complained  of, 
whether  it  be  a  nuisance  or  not,  is  abated.  But  upon  a  decree  in  equity, 
if  it  appear  to  be  a  mere  purpresture,  without  being  at  the  same  time 
a  nuisance,  the  court  may  direct  an  inquiry  to  be  made,  whether  it  is 
most  beneficial  to  the  Crown,  to  abate  the  piupresture,  or  to  suffer  the 
erections  to  remain  and  be  arrested  (x).  But  if  the  purpresture  be  also 
a  public  nuisance,  this  cannot  be  done ;  for  the  Crown  cannot  sanction 
a  public  nuisance. 

§  923.  In  cases  of  public  nuisances,  properly  so  called,  an  indict- 
ment lies  to  abate  them,  and  to  punish  the  offenders.  But  an 
information  also  lies  in  equity  to  redress  the  grievance  by  way  of 
injunction.  The  instances  of  the  interposition  of  the  court,  however, 
are  (it  is  said)  rare,  and  principally  confined  to  information  seeking 
preventive  relief.  Thus,  informations  in  equity  have  been  maintained 
against  a  public  nuisance  by  stopping  a  highway.  Analogous  to  that 
there  have  been  many  cases  on  the  equity  side  of  the  Court  of 
Exchequer,  the  jurisdiction  of  which  is  now  vested  in  the  Supre^me 
Court,  of  nuisance  to  harbours,  which  are  a  species  of  highway.  If 
the  soil  belongs  to  the  Crown,  there  is  a  species  of  remedy  for  the 
purpresture  above  mentioned  for  that.  And  a  similar  jurisdiction  was 
exercised  in  the  case  of  marine  foreshores  {y). 

§  924.  The  ground  of  this  jurisdiction  of  courts  of  equity  in  ca,ses 
of  purpresture,  as  well  as  of  public  nuisances,  undoubtedly  is,  their 
ability  to  give  a  more  complete  and  perfect  remedy  than  is  attain- 
able at  law,  in  order  to  prevent  irreparable  mischief,  and  also  to 
suppress  oppressive  and  vexatious  litigation.  In  the  first  place,  they 
can  interpose  (where  the  courts  of  law  could  not,  until  recent  times) 
to  restrain  and  prevent  such  nuisances,  which  are  threatened  or  are  in 
progress,  as  well  as  to  abate  those  already  existing.  In  the  next  place, 
by  a  perpetual  injunction,  the  remedy  is  made  complete  through  all 
future  time ;  whereas,  an  information  or  indictment  at  the  common  law 
can  only  dispose  of  the  present  nuisance;  and  for  future  acts  new 
prosecutions  must  be  brought.  In  the  next  place,  the  remedial  justice 
in  equity  may  be  prompt  and  immediate,  before  irreparable  mischief 
is  done ;  whereas,  at  law,  till  lately,  nothing  could  be  done,  except  after 

(«)  Ibid.;  Hale  in  Harg.  Law  Tracts,  ch..  8,  pp.  74,  78;  Att.-Gen.  v.  Forbes,  2 
Myl.  &  Cr.  123;  Earl  of  Ripon  v.  Hobart,  8  Myl.  &  K.  169,  179,  180,  181. 

(x)  Hale  in  Harg.  81;  Att.-Oen.  v.  Richards,  2  Anst.  603. 

iy)  See  Att.-Gen.  v.  Richards,  2  Anst.  603;  Att.-Gen.  v.  Parmeter,  10  Price,  378; 
in  H.  L.  nom.  Parmeter  v.  Gibbs,  10  Price  412 ;  Att.-Gen.  v.  Emmerson  [1891] 
A.  C.  649. 


§  922—926.]  INJUNCTIONS.  377 

a  trial,  and  upon  the  award  of  judgment.  In  the  next  place,  a  court 
of  equity  will  not  only  interfere  upon  the  information  of  the  Attorney- 
General,  but  also  upon  the  application  of  private  parties  (z),  directly 
affected  by  the  nuisance ;  whereas,  at  law,  in  many  cases  the  remedy  is, 
or  may  be,  solely  through  the  instrumentality  of  the  Attorney- 
General  (d). 

§  925.  In  regard  to  private  nuisances,  the  interference  of  the  courts 
by  injunction  is  undoubtedly  founded  upon  the  ground  of  restraining 
irreparable  mischief,  or  of  suppressing  oppressive  and  interminable, 
litigation,  or  of  preventing  multiplicity  of  suits.  It  is  not  every  case, 
which -will  furnish  a  right  of  action  against  a  party  for  a  nuisance, 
which  will  justify  the  interposition  of  the  courts  to  redress  the  injury 
or  to  remove  the  annoyance.  But  there  must  be  such  an  injury,  as 
from  its  nature  is  not  susceptible  of  being  adequately  compensated 
by  damages  at  law,  or  such  as,  from  its  continuance  or  permanent  mis- 
chief, must  occasion  a  constantly  recurring  grievance,  which  cannot  be 
otherwise  prevented  but  by  an  injunction  (b).  Thus,  every  common 
trespass  is  not  a  foundation  for  an  injunction,  where  it  is  only  con- 
tingent, fugitive,  or  temporary,  but  if  repetition  be  threatened,  or  if  it 
is  continued  so  long-  as  to  become  a  nuisance,  an  injunction  may  be 
granted,  to  restrain  the  person  from  repeating  or  continuing  it  (c).  So, 
a  mere  diminution  of  the  value  of  property  by  the  nuisance,  without 
irreparable  mischief,  will  not  furnish  any  foundation  for  equitable 
relief  (d). 

§  926.  On  the  other  hand,  where  the  injury  is  irreparable,  as  where 
loss  of  health,  loss  of  trade,  destruction  of  the  means  of  subsistence, 
or  permanent  ruin  to  property,  may  or  will  ensue  from  the  wrongful 
act  or  erection;  in  every  such  case  courts  of  equity  will  interfere  by 
injunction,  in  furtherance  of  justice  and  the  violated  rights  of  the 
party  (e).  Thus,  for  example,  where  a  party  builds  so  near  the  house 
of  another  party  as  to  darken  his  windows,  against  the  clear  rights  of 
the  latter  by  prescription,  courts  of  equity  will  interfere  by  injunction 
to  prevent  the  nuisance  being  committed,  but  will  not  generally  inter- 
fere after  the  building  is  completed,  although  an  action  for  damages 

(z)  See  Soltau  v.  De  Held,  2  Sim.  N.  S.  133. 

(a)  See  the  observations  of  Lord  Cattenham,  L.C.,  in  Att.-Gen.  v.  Forbes,  2 
Myl.  &  Cr.  123. 

(b)  Swaine  v.  G.  N.  By.,  i  De  G.  J.  &  S.  211;  Salvin  v.  N.  Brancepeth  Coal  Co., 
L.  B.  9  Ch.  70S;  Shelf er  v.  City  of  London  Electric  Lighting  Co.,  [1895]  1  Ch.  287; 
Ruchmer  v.  Polsue  d  Alfieri,  Ltd.,  [1906]  1  Ch.  234. 

(c)  Goulson  V.  White,  3  Atk.  21;  Gaunt  v.  Fynney,  L.  E.  8  Ch.  8;  Harrison  v. 
Duke  of  Rutland,  [1893]  1  Q.  B.  142. 

(d)  Att.-Gen.  v.  Sheffield  Gas  Consumers  Co.,  3  De  G.  M.  &  G.  304;  Att.-Gen. 
V.  Cambridge  Consumers  Gas  Co.,  L.  E.  4  Ch.  71;  Colls  v.  Home  and  Colonial  Stores, 
[1904]  A.  C.  179. 

(e)  Imperial  Gas  Light  and  Coke  Co.  v.  Broadbent,  7  H.  L.  C.  600;  Metropolitan 
Asylums  Board  v.  Hill,  6  App.  Gas.  193;  Shelf  er  v.  City  of  London  Electric  Lighting 
Co.,  [1895]  1  Ch.  287;  Wood  v.  Conway  Corporation,  [1914]  2  Ch.  47. 


378  EQUITY    JURISPRUDENCE.  [CH.  XXII, 

would  lie  at  law;  for  the  latter  can  in  no  just  sense  be  deemed  an 
adequate  relief  in  such  a  case  (/).  The  injury  is  material,  and  operates 
daily  to  destroy  or  diminish  the  comfort  and  use  of  the  neighbouring 
house ;  and  the  remedy  by  a  multiplicity  of  actions,  for  the  continuance 
of  it,  would  furnish  no  substantial  compensation. 

§  926a.  It  has  been  said  on  many  occasions  that  there  can  be  no 
prescriptive  right  to  commit  a  nuisance,  on  the  other  hand  the  measure 
of  what  constitutes  a  nuisance  has  always  been  tested  by  the  ' '  ordin- 
ary notions  of  mankind."  Acquiescence  for  a  long  period  of  time  in 
suffering  acts  which  amount  to  a  nuisance  without  protest  may  well  be 
accepted  as  conclusive  evidence  that  the  subject  matter  of  corhplaint 
is  not  an  unreasonable  exercise  of  individual  freedom  according  to  the 
"ordinary  notions  of  mankind."  And  although  this  reason  has  not 
been  given  in  any  judicial  exposition  of  the  law,  it  has  probably  influ- 
enced the  refusal  of  relief  even  in  cases  of  information  at  the  suit  o£ 
the  attorney-general  (g). 

§  927.  Cases  of  a  nature  calling  for  the  like  remedial  interposition 
of  courts  of  equity  axe — The  obstruction  or  pollution  of  watercourses  (h), 
the  diversion  of  stream  from  mills,  the  back  flowage  on  mills,  and 
the  pulling  down  of  the  banks  of  rivers,  and  thereby  exposing  adjaceat 
lands  to  inundation  or  adjacent  mills  to  destruction  (i).  So,  where 
easements  or  servitudes  are  annexed  by  grant  or  covenant,  or  otherwise, 
to  private  estates ;  or  where  privileges  of  a  public  nature,  and  yet  bene- 
ficial to  private  estates,  are  secured  to  the  proprietors  contiguous  to 
public  squares  or  other  places  dedicated  to  public  uses,  the  due  enjoy- 
ment of  them  will  be  protected  against  encroachments  by  injunction. 
So,  an  injunction  will  be  granted  against  a  corporation  to  prevent  an 
abuse  of  the  powers  granted  to  them  to  the  injury  of  other  persons  (k). 
So,  an  injunction  will  be  granted  against  the  erection  of  a  new  ferry 
injurious  to  an  old-estabhshed  ferry  (I).  So,  to  restrain  the  ringing  of 
bells  by  a  Eoman  Catholic  community,  although  the  same  was  done 
only  on  Sundays  (m).  So,  to  prevent  a  tenant  from  removing  mineral 
and  other  deposits  from  the  bed  of  a  stream  running  through  a  farm 
which  he  occupies  (n).     Other  illustrations  are  afforded  by  the  right  of 

(/)  Colls  V.  Home  and  Colonial  Stores,  [1904]  A.  C.  179;  Cowper  v.  Laidler, 
[1903]  2  Ch.  337;  Higgins  v.  Belts,  [1905]  2  Ch.  210. 

(g)  Att.-Gen.  v.  Sheffield  Gas  Consumers  Co.,  3  De  G.  M.  &  G.  304. 

(h)  Att.-Gen.  v.  Terry,  L.  E.  9  Ch.  423;  Ballard  v.  Tomlinson,  29  Ch.  D.  194; 
Jones  V.  Llandajf  Urban  Council,  [1911]  1  Ch.  393.  The  pollution  of  streams  is  also 
dealt  with  by  the  Public  Health  Act,  1875,  and  the  Rivers  Pollution  Act,  1876. 

(t)  Robinson  v.  Lord  Byron,  1  Bro.  C.  C.  588;  Lane  v.  Newdigate,  10  Ves.  194; 
see  Maxey  Drainage  Board  v.  G.  N.  Ry.,  106  L.  T.  429. 

(fc)  Coates  v.  Clarenoe  Railway  Company,  Eues.  &  Myl.  181. 

(I)  Gory  V.  Yarmouth  and  Norwich  Ry.,  3  Hare,  693;  Hammerton  v.  Earl  of 
Dysart,  [1916]  A.  C.  67. 

(m)  Soltau  v.  De  Held,  2  Sim.  N.  8.  133. 

(n)  Thomas  v.  Jones,  1  Y.  &  Coll.  Ch.  510. 


§  9260^931.]  INJUNCTIONS.  379 

support  (o),  and  ancient  lights  (p),  if  the  damage  is  serious  and  per- 
manent. 

§  928..  It  is  upon  similar  grounds  that  courts  of  equity  interfered 
before  the  Judicature  Act,  1873,  in  cases  of  trespass — that  is  to  say, 
to  prevent  irreparable  mischief,  or  to  suppress  multiplicity  of  suits  and 
oppressive  litigation.  For,  if  the  trespass  v^ere  fugitive  and  temporary, 
and  adequate  compensation  could  be  obtained  in  an  action  at  law,  there 
was  no  ground  to  justify  the  interposition  of  courts  of  equity.  Form- 
erly, indeed,  courts  of  equity  were  extremely  reluctant  to  interfere  at 
all,  even  in  regard  to  cases  of  repeated  trespasses.  But,  later  did  so,  if 
the  acts  done,  or  threatened  to  be  done,  to  the  property  would  be  ruin- 
ous or  irreparable,  or  would  impair  the  just  enjoyment  of  the  property 
in  future.  If,  indeed,  courts  of  equity  had  not  interfered  in  cases  of 
this  sort,  there,  would  (as  has  been  truly  said)  be  a  great  failure  of  jus- 
tice in  the  country  (g).  But  by  the  Judicature  Act,  1873,  s.  25,  sub-s. 
8,  it  is  provided  that  if  an  injunction  is  asked  either  before,  or  at,  or 
after  the  hearing  of  any  cause  or  matter  to  prevent  any  threatened  or 
apprehended  waste  or  trespass,  such  injunction  may  be  granted,  if  the 
court  shall  think  fit,  whether  the  person  against  whom  such  injunction 
is  sought  is  or  is  not  in  possession  under  any  claim  of  title  or  otherwise, 
or,  if  out  of  possession,  does  or  does  not  claim  a  right  to  do  the  act 
sought  to  be  restrained  under  any  colour  of  title,  and  whether  the 
estates  claimed  by  both,  or  by  either  of  the  parties,  are  legal  or  equit- 
able (r). 

§  930.  It  is  upon  similar  principles,  to  prevent  irreparable  mischief, 
or  to  suppress  multiplicity  of  suits  and  vexatious  litigation,  that  courts 
of  equity  interfere  in  cases  of  patents  for  inventions,  and  in  cases  of 
copyrights,  to  secure  the  rights  of  the  inventor,  or  author,  and  his 
assigns  and  representatives.  It  is  wholly  beside  the  purpose  of  the 
present  Commentaries  to  enter  upon  the  subject  of  the  general  rights  of 
inventors  and  authors,  or  to  state  the  circumstances  under  which  an 
exclusive  property,  in  virtue  of  those  rights,  may  be  acquired  or  lost. 
Our  observations  will  rather  be  limited  to  the  consideration  of  the  cases 
in  which  courts  of  equity  will  interfere  to  protect  those  rights,  when 
acquired,  by  granting  injunctions. 

§  931.  It  is  quite  plain,  that,  if  no  other  remedy  could  be  given  in 
cases  of  patents  and  copyrights  than  an  action  at  law  for  damages,  the 
inventor  or  author  might  be  ruined  by  the  necessity  of  perpetual  litiga- 
tion, without  ever  being  able  to  have  a  final  establishment  of  his  rights, 

(o)  Hunt  V.  Peake,  Johns,  705;  Howley  Park  Coal  and  Council  Co.  v.  L.  <t  N.  W. 
By.,  [1911]  A.  C.  11. 

(p)  Tapling  v.  Jones,  11  H.  L.  C.  290;  Colls  v.  Home  and  Colonial  Stores,  [1904J 
A.  C.  179;  Cowper  v.  Laidler,  [1903]  2  Ch.  337;  Higgins  v.  Betts,  [1905]  2  Ch.  210. 

(g)  Thomas  v.  Oakley,  18  Ves.  184;  Haigh  v.  Jaggar,  2  Coll.  231;  Earl  Talbot  v. 
Scott,  IK.  &  J.  96 ;  Harrison  v.  Duke-  of  Rutland,  [1893]  1  Q.  B.  142. 

(r)  Stannard  v.  Vestry  of  St.  Giles,  Camberwell,  20  Ch.  D.  190;  Foxwell  v.  Van 
Grutten,  [1897]  1  Ch.  64. 


380  EQUITY     JDEI9PRUDENCE.  [OH.  XXII. 

§  932.  Indeed,  in  cases  of  this  nature,  it  is  almost  impossible  to 
know  the  extent  of  the  injury  done  to  the  party  without  a  discovery 
from  the  party  guilty  of  the  infringement  of  the  patent  or  copyright; 
and  if  it  were  otherwise,  mere  damages  would  give  no  adequate  relief. 
For  example,  in  the  case  of  a  copyright,  the  sale  of  copies  by  the  de- 
fendant is  not  only  in  each  instance  taking  from  the  author  the  profit 
upon  the  individual  book,  which  he  might  otherwise  have  sold ;  but  it 
may  also  be  injuring  him,  to  an  incalculable  extent,  in  regard  to  the 
value  and  disposition  of  his  copyright,  which  no  inquiry  for  the  purpose 
of  damages  could  fully  ascertain  (s). 

§  933.  In  addition  to  this  consideration,  the  plaintiff  could  at  law 
have  no  preventive  remedy,  which  should  restrain  the  future  use  of 
his  invention,  or  the  future  publication  of  his  work,  injuriously  to  his 
title  and  interest.  And  it  is  this  preventive  remedy  which  constitutes 
the  peculiar  feature  of  equity  jurisprudence,  and  enables  it  to  accom- 
plish the  great  purposes  of  justice.  Besides,  in  most  cases  of  this  sort, 
the  bill  usually  seeks  an  account,  in  one  case  of  the  books  printed,  and, 
in  the  other,  of  the  profits  which  have  arisen  from  the  use  of  the  inven- 
tion, from  the  persons  who  have  pirated  the  same.  And  this  account 
will,  in  all  cases  where  the  right  is  established,  be  decreed  as  incidental, 
in  addition  to  the  other  relief  by  a  perpetual  injunction  (t). 

§  934.  In  cases,  however,  where  a  patent  had  been  granted  for  an 
invention,  it  was  not  a  matter  of  course  for  courts  of  equity  to  interpose 
by  way  of  injunction.  If  the  patent  had  been  but  recently  granted, 
.and  its  validity  had  not  been  ascertained  by*  a  trial  at  law,  the  court 
would  not  formerly  act  upon  its  own  notions  of  the  validity  or  invalidity 
of  the  patent,  and  grant  an  immediate  injunction ;  but  it  would  require 
it  to  be  ascertained  by  a  trial  in  a  court  of  law,  if  the  defendant  denied 
its  validity,  or  put  the  matter  in  doubt.  But,  if  the  patent  had  been 
granted  for  some  length  of  time ;  and  the  patentee  had  put  the  inven- 
tion into  public  use;  and  had  had  an  exclusive  possession  of  it  under 
bis  patent  for  a  period  of  time,  which  might  fairly  create  the  just  pre- 
sumption of  an  exclusive  right,  the  court  would,  in  such  a  case,  ordin- 
arily interfere  by  way  of  preliminary  injunction,  pending  the  proceed- 
ings ;  reserving,  of  course,  unto  the  ultimate  decision  of  the  cause,  its 
own  final  judgment  on  the  merits.  But  since  the  Judicature  Act,  1873, 
the  validity  or  invalidity  of  the  patent  is  determined  in  the  court  which 
grants  or  refuses  the  injunction  (u). 

§  935.    Similar  principles  apply  to  cases  of  copyright  (x).     But  it 
does  not  seem  indispensable  to  relief  in  either  cases,  that  the  party 

(«)  Hogg  v.  Kirby,  8  Ves.  215  at  pp.  224,  225;  Wilkins  v.  Aiken,  17  Ves.  424. 
(t)  Colbum  V.  Sims,  2  Hare  543;  Lever  v.  Goodwin,  36  Ch.  D.  1.     There  is  a 
Btatutory  jurisdiction  to  order  the  delivery  up  of  pirated  copies, 
(li)  HaUey  v.  Brotherhood,  15  Ch.  D.  514. 
(x)  Wilkins  v.  Aiken,  17  Ves.  424. 


§  932—938.]  INJUNCTIONS.  381 

should  have  a  strictly  legal  title.  It  is  sufficient  that  under  the  patent 
or  copyright,  the  party  has  a  clear  equitable  title  (y). 

§  936.  There  are  some  peculiar  principles,  applicable  to  cases  of 
copyright,  which  deserve  notice  in  this  place,  and  are  not  generally 
applicable  to  patents  for  inventions.  In  the  first  place,  no  copyright 
can  exist,  consistently  with  principles  of  public  policy,  in  any  work  of 
a  clearly  irreligious,  immoral,  libellous,  or  obscene  description.  In 
the  case  of  an  asserted  piracy  of  any  such  work,  if  it  be  a  matter  of 
any  real  doubt,  whether  it  falls  within  such  a  predicament  or  not,, 
courts  of  equity  will  not  interfere  by  injunction  to  prevent  or  to  restrain 
the  piracy ;  but  will  leave  the  party  to  his  remedy  at  law  (a). 

§  937.  It  is  true,  that  an  objection  has  been  taken  to  this  course 
of  proceeding,  that  by  refusing  to  interfere  in  such  cases  to  suppress 
the  publication,  a  court  of  equity  virtually  promotes  the  circulation  of 
offensive  and  mischievous  books.  But  the  objection  vanishes,  when 
it  is  considered  that  the  court  does  not  affect  to  act  as  a  censor  morum, 
or  to  punish  or  restrain  injuries  to  society  generally.  It  simply  with- 
holds its  aid  from  those  who,  upon  their  own  showing,  have  no  title  to 
protection,  or  to  assert  a  property  in  things  which  the  law  will  not, 
upon  motives  of  the  highest  concern,  permit  to  be  deemed  incapable 
of  founding  a  just  title  or  property  (a). 

§  938.  The  soundness  of  this  generous  principle  can  hardly  admit 
of  a  question.  The  chief  embajrassment  and  -difficulty  lie  in  the  appli- 
cation of  it  to  particular  cases.  If  a  court  of  equity,  under  colour  of 
its  general  authority,  is  to  enter  upon  all  the  moral,  theological,  meta- 
physical, and  political  inquiries,  which,  in  past  times,  have  given  rise 
to  so  many  controversies,  and  in  the  future  may  well  be  supposed  to 
provoke  many  heated  discussions;  and  if  it  is  to  decide  dogmatically 
upon  the  character  and  bearing  of  such  discussions,  and  the  rights  of 
authors,  growing  out  of  them ;  it  is  obvious,  that  an  absolute  power  is' 
conferred  over  the  subject  of  literary  property,  which  may  sap  the  very 

(y)  Mawman  v.  Tegg,  2  Buss.  385. 

(z)  I  am  not  unaware  that  Lord  Eldon  has  held  the  opposite  of  this  doctrine;  and 
that  is,  that  if  it  does  admit  of  real  doubt,  whether  the  work  be  irreligious,  im- 
moral, libellous,  or  seditious,  or  not,  an  injunction  ought  to  be  denied,  upon  the  mere 
ground  of  the  doubt.  It  has  been  thought  that  there  is  great  difficulty  in  adopting  this 
doctrine,  denying  the  protection  of  an  injunction  in  matters  of  property  upon  mere 
doubts.  Primd,  facie  the  copyright  confers  title ;  and  the  onus  is  on  the  other  side  tO' 
show  clearly  that,  notwithstanding  the  copyright,  there  is  an  intrinsic  defect  in  the 
title.    See  Lawrence  v.  Smith,  Jac.  472. 

(o)  Walcot  V.  Walker,  7  Ves.  1 ;  Southey  v.  Sherwood,  2  Meriv.  435 ;  Lawrence 
V.  Smith,  Jac.  471,  474,  note.  But  Mr.  Kerr,  in  his  work  on  Injunctions,  3rd  edit.  p.. 
497,  is  of  opinion  that  these  cases  would  not  be  followed  at  the  present  day.  As  the 
learned  author  remarks,  "  The  right  of  an  author  in  his  manuscript  before  publication, 
is  an  absolute  and  exclusive  one,  and  cannot  be  affected  by  the  nature  of  the  contents. 
The  nature  and  character  of  the  work  are  fit  considerations  for  the  court,  in  determin- 
ing whether  it  ought  to  be  protected  after  publication  under  the  statutory  law  of  copy- 
right, but  should  not  be  gone  into  where  a  man  is  illegally  deprived  of  an  absolute  andi 
exclusive  right  of  property." 


382  EQUITY     JURISPRUDENCE.  [CH.  XXII. 

foundations  on  which  it  rests,  and  retard,  if  not  entirely  suppress,  the 
means  of  arriving  at  physical  as  well  as  metaphysical  truths.  Thus, 
for  example,  a  judge,  who  should  happen  to  believe  that  the  immateri- 
ality of  the  soul,  as  well  as  its  immortality,  was  a  doctrine  clearly 
revealed  in  the  Scriptures  (a  point  upon  which  very  learned  and  pious 
minds  have  been  greatly  divided),  would  deem  any  work  anti-Christian 
which  should  profess  to  deny  that  point,  and  would  refuse  an  injunc- 
tion to  protect  it.  So,  a  judge,  who  should  be  a  Trinitarian,  might 
most  conscientiously  decide  against  granting  an  injunction  in  favour  of 
an  author  enforcing  Unitarian  views;  when  another  judge,  of  opposite 
opinions,  might  not  hesitate  to  grant  it  (b). 

§  939.  In  the  next  place,  in  cases  of  copyright,  difficulties  often 
arise,  in  ascertaining  whether  there  has  been  aji  actual  infringement 
thereof,  which  are  not  strictly  applicable  to  cases  of  patents.  For  in- 
stance, in  dealing  with  the  same  topic,  authors  must  reproduce  the 
same  ideas,  and  frequently  in  identical  language  (c),  or  independent 
labours  may  end  in  the  production  of  identical  maps,  or  designs  (d). 
So,  of  translations  (e).  It  is,  for  instance,  clearly  settled  not  to  be  any 
infringement  of  the  copyright  of  a  book,  to  make  bond  fide  quotations 
or  extracts  from  it,  or  a  bond  fide  abridgment  of  it;  or  to  make  a  bond 
fide  use  of  the  same  common  materials  in  the  composition  of  another 
■work  (/).  And  a  work,  consisting  partly  of  compilations  and  selections 
from  former  works,  and  partly  of  original  compositions,  may  be  the 
subject  of  copyright  (g).  But  what  constitutes  a  bond  fide  case  of  ex- 
tracts, or  a  bond  fide  abridgment,  or  a  bond  fide  use  of  common 
materials,  is  often  a  matter  of  most  embarrassing  inquiry.  The  true 
question,  in  all  cases  of  this  sort,  is  (it  has  been  said),  whether  there 
has  been  a  legitimate  use  of  the  copyright  publication,  in  the  fair  exer- 
cise of  a  mental  operation,  deserving  the  character  of  a  new  work.  If 
there  has  been,  although  it  may  be  prejudicial  to  the  original  author, 
it  is  not  an  invasion  of  his  legal  rights.  If  there  has  not  been,  then 
it  is  treated  as  a  mere  colourable  curtailment  of  the  original  work,  and 
a  fraudulent  evasion  of  the  copyright  (h).  But  this  is  another  mode 
of  stating  the  difficulty,  rather  than  a  test  affording  a  clear  criterion 
to  discriminate  between  the  cases  (i).     Pirating  the  wood  engravings 

(b)  Lawrenoe  v.  Smith,  Jao.  471;  Bowman  v.  Secular  Society,  Ltd.,  [1917] 
A.  C.  406. 

(c)  Jarrold  v.  Houldston,  3  K.  &  J.  708;  Pike  v.  Nicholas,  L.  E.  5  Ch.  231: 

(d)  Wilkins  v.  Aiktn,  17  Ves.  422. 

(e)  Wyatt  v.  Barnard,  3  Ves.  &  B.  77 ;  Ghatterton  v.  Cave,  3  App.  Gas.  483. 

(/)  Campbell  v.  Scott,  11  Sim.  31.  But  in  Tinsley  v.  Lacy,  1  H.  &  M.  747,  Lord 
Jiatherley  said  the  cases  as  to  abridgment  had  gone  far  enough,  and  expressed  his 
disapproval  of  several  of  the  dicta  on  the  subject.  See  Kerr  on  Injunctions,  3rd  edit 
pp.  366,  367. 

(g)  Lewis  v.  Fullarton,  2  Beav.  6. 

Qi)  Kelly  v.  Morris,  L.  B.  1  Bq.  697;  Pike  v.  Nicholas,  Xj.  E.  5  Ch.  251. 

(t)  See  Campbell  v.  Scott,  H  Sim.  31;  Bramwell  v.  Haleomb,  3  Myl.  &  Or.  737; 
Lewis  v.  Fullarton,  2  Beav.  6. 


§  939—940.]  INJUNCTIONS.  383 

printed  in  a  book  as  illustrations  of  the  stories  therein,  and  using  them 
in  a  book  as  illustrations  of  different  stories,  is  an  infringement  of  a 
copyright,  which  may  be  restrained  by  injunction  [k).  It  has  been  held 
that  a  prQse  translation  of  a  copyright  prose  romance,  having  no  quali- 
ties of  a  paraphrase,  is  not  an  infringement  of  the  author's  copyright 
of  the  original,  although  the  author  had  procured  the  work  to  be  trans- 
lated into  the  same  language  as  the  alleged  infringement,  and  in  that 
language  also  copyrighted  (I).  A  person  writing  words  to  an  old  air, 
and  procuring  an  accompaniment  and  preface,  and  publishing  the  whole 
together,  is  entitled  to  a  copyright  in  the  whole  (m). 

§  940.  A  difficulty  of  a  similar  character  often  arises,  in  the  ascer- 
tainment of  the  fact  whether  a  work  is  original  or  not.  Of  some 
intellectual  productions,  the  originality  admits  of  as  little  doubt  as  the 
originality  of  some  inventions  or  discoveries.  But,  in  a  great  variety 
of  cases,  the  differences  between  the  known  and  the  unknown,  between 
the  new  and  the  old,  between  the  original  and  the  copy,  depend  upon 
shades  of  distinction  extremely  minute  and  almost  inappreciable.  It 
is  obvious  that  there  can  be  no  monopoly  of  thoughts,  or  of  the  expres- 
sion of  them.  Language  is  common  to  all ;  and  in  the  present  advanced 
state  of  literature,  and  learning,  and  science,  most  species  of  literary 
works  must  contain  much  which  is  old  and  well  known,  mixed  up  with 
something  which  perhaps  is  new,  peculiar,  and  original.  The  character 
of  some  works  of  this  sort  may,  beyond  question,  be  in  the  highest  sense 
original;  such,  for  example,  as  the  works  of  Shakespeare,  and  Milton, 
and  Pope,  and  Sir  Walter  Scott;  although  all  of  them  have  freely  used 
the  thoughts  of  others.  Of  others,  again,  the  original  ingredients  may 
be  so  small  and  scattered,  that  the  substance  of  the  volumes  may  be 
said  to  embrace  little  more  than  the  labour  of  sedulous  transcription, 
and  colourable  curtailment  of  other  works.  There  are  others  of  an 
intermediate  class,  where  the  intermixture  of  original  and  borrowed 
materials  may  be  seen  in  proportions  more  nearly  approaching  to  an 
equality  with  each  other.  And  there  are  others,  again,  as  in  oases  of 
maps,  charts,  translations,  and  road-books,  where,  the  materials  being 
equally  open  to  all,  there  must  be  a  close  identity  or  similitude  in  the 
very  form  and  use  of  the  common  materials.  The  difficulty  here  is,  to 
distinguish  what  belongs  to  the  exclusive  labours  of  a  single  mind  from 
vs^hat  are  the  common  sources  of  the  materials  of  the  knowledge  used 
by  all.  Suppose,  for  instance,  the  case  of  maps :  one  man  may  pub- 
lish the  map  of  a  country :  another  man,  with  the  same  design,  if  he 
has  equal  skill  and  opportunity,  may  by  his  own  labour  produce  almost 
a  facsimile.  He  has  certainly  a  right  so  to  do.  But  then  from  his  right 
through  that  medium,  it  does  not  follow  that  he  would  be  at  liberty 

(k)  Bogue  v.  Houlston,  5  De  C3-.  &  Sm.  267;  Bradbury  v.  Hotten,  8  Ex.  1.    And, 
photographing  is  within  the  prohibition.     Gambart  v.  Ball,  14  C.  B.  N.  S.  306. 
(!)  Murray  v.  Bogue,  1  Drew.  353. 
(m)  Leader  v.  Purday,  17  C.  B.  97 ;  Wood  v.  Boosey,  3  Q.  B.  228. 


384  EQUITY     JURISPRUDENCE.  [CH.   XXII. 

to  copy  the  other  map,  and  claim  it  as  his  own.  He  may  work  on  the 
same  original  materials;  but  he  cannot  exclusively  and  evasively  use 
those  already  collected  and  embodied  by  the  skill,  industry,  and  ex- 
penditures of  another  (n). 

§  941.  In  some  cases  of  this  nature  a  court  of  equity  will  take  upon 
itself  the  task  of  inspection  and  comparison  of  books  alleged  to  be  a 
piracy  (o) ;  or  the  matter  may  be  referred  to  an  expert  (p)  or  to  the 
master,  who  then  reports  whether  the  books  differ,  and  in  what  re- 
spects; and,  upon  such  a  report,  the  court  usually  acts  in  making  its 
interlocutory,  as  well  as  its  final  decree  (g). 

§  942.  In  cases  of  the  invasion  of  a  copyright  by  using  the  same 
materials  in  another  work,  of  which  a  large  proportion  is  original,  it 
constitutes  no  objection  that  an  injunction  will  in  effect  stop  the  sale 
and  circulation  of  the  work  which  so  infringes  upon  the  copyright.  If 
the  parts  which  are  original  cannot  be  separated  from  those  which 
are  not  original,  without  destroying  the  use  and  value  of  the  original 
matter,  he  who  has  made  the  improper  use  of  that  which  did  not  belong 
to  him  must  suffer  the  consequences  of  so  doing.  If  a  man  mixes 
what  belongs  to  him  with  what  belongs  to  another,  and  the  mixture 
is  forbidden  by  the  law,  he  must  again  separate  them,  and  bear  all  the 
mischief  and  loss  which  the  separation  may  occasion.  The  same  rule 
applies  to  the  use  of  literary  matter  (7*).  It  proceeds  upon  the  same 
general  principle  of  justice  which  applies  to  the  ordinary  case  of  a  con- 
fusion of  property  by  premeditation  or  wanton  impropriety  (s). 

§  943.  We  may  now  proceed  to  the  consideration  of  other  cases 
where,  upon  similar  grounds  of  irreparable  mischief,  or  the  inadequacy 
of  the  remedy  at  law,  or  the  prevention  of  multiplicity  of  suits,  courts 
of  equity  interfere  by  way  of  injunction.  And  here,  we  may  take 
notice,  in  the  first  place,  of  a  class  of  cases  bearing  a  close  analogy  to 
that  of  copyrights;  that  is  to  say,  cases  where  courts  of  equity  inter- 
fere to  restrain  the  publication  of  unpublished  manuscripts.  In  cases 
of  literary,  scientific,  and  professional  treatises  in  manuscripts,  it  is 
obvious  that  the  author  must  be  deemed  to  possess  the  original  owner- 
ship, and  be  entitled  to  appropriate  them  to  such  uses  as  he  shall  please. 
Nor  can  he  justly  be  deemed  to  intend  to  part  with  that  ownership  by 
depositing  them  in  the  possession  of  a  third  person,  or  by  allowing  a 
third  person  to  take  and  hold  a  copy  of  them.  Such  acts  must  b*e 
deemed  strictly  limited,  in  point  of  right,  use,  and  effect,  to  the  very 
occasions  expressed  or  implied,  and  ought  not  to  be  construed  as  a 

(n)  Wilkins  v.  Aiken,  17  Ves.  424,  425;  Longman  v.  Winchester,  16  Ves.  269, 
271;  Matthewson  v.  Stockdale,  12  Ves.  270;  Carey  v.  Faden,  5  Ves.  24. 

(0)  Bramwell  v.  Holcomb,  3  M.  &  Cr.  737;  Lewis  v.  Fullarton,  2  Beav.  6. 

(p)  Gyles  V.  Wilcox,  2  Atk.  141. 

(g)  Garnan  v.  Bowles,  2  Bro.  C.  C.  80;  Lartte  v.  Leadbetter,  4  Ves.  681. 

(r)  Mawman  v.  Tegg,  2  Euss.  112;  Ghatterton  v.  Gave,  3  App.  Gas.  483;  Leslie 
V.  Young,  [1894]  A.  C.  335. 

(s)  Story,  Comm.  on  Bailment,  §  40;  ante,  §  §  468,  623. 


§  941 — 945.]  ,   INJUNCTIONS.  385 

general  gift  or  authority  for  any  purposes  of  profit  or  publication  to 
which  the  receiver  may  choose  to  devote  them.  The  property,  then, 
in  such  manuscripts,  not  having  been  parted  with  in  cases  of  this  sort, 
if  any  attempt  is  made  to  publish  them  without  the  consent  of  the 
author  or  proprietor,  it  is  obvious  that  he  ought  to  be  entitled  to  protec- 
tion in  equity.  And,  accordingly,  this  course  of  granting  injunctions 
against  such  unauthorized  publications  has  been  constantly  acted  upon 
in  courts  of  equity,  and  has  been  applied  to  all  sorts  of  literary  com- 
positions (t). 

§  944'.  Upon  the  same  principle,  the  publication  of  private  or  confi- 
dential letters  has  been  restrained  where  the  publication  has  been 
attempted  without  the  consent  of  the  author  (u).  Upon  one  occasion 
of  this  sort  the  question  arose  whether  letters  having  this  character 
remained  in  any  respect  the  property  of  the  writer  after  they  were 
transmitted  to  the  person  to. whom  they  were  addressed.  It  was  held 
that  they  did ;  that  by  sending  letters  the  writer  does  not  part  wholly 
with  his  property  in  the  literary  compositions,  nor  give  the  receiver  the 
power  of  publishing  them,  and  that  at  most  the  receiver  has  only  a 
special  property  in  them,  and  possibly  may  have  the  property  of  the 
paper.  But  this  does  not  give  a  licence  to  any  person  whatsoever  to 
publish  them  to  the  world,  unless  for  the  purpose  of  vindicating  his 
character,  and  at  most  the  receiver  has  only  a  joint  property  with  the 
writer.  Whether  he  is  to  be  considered  as  having  such  joint  property 
or  not,  letters  must  be  treated  as  within  the  laws  protecting  the  rights 
of  literary  property ;  and  a.  violation  of  those  rights  in  that  instance  is 
attended  with  the  same  legal  consequences  as  in  the  case  of  an  un- 
published manuscript  of  an  original  composition  of  any  other 
description  (x). 

§  945.  In  Gee  v.  Pritchard  (y),  Lord  Eldon  explained  the  doctrine 
of  courts  of  equity  on  this  subject  to  be  founded,  not  on  any  notion 
that  the  publication  of  letters  would  be  painful  to  the  feelings  of  the 
writer,  but  upon  a  civil  right  of  property,  which  the  court  is  bound  to 
respect.  That  the  property  is  qualified  in  some  respects ;  that,  by 
sending  a  letter,  the  writer  has  given,  for  the  purpose  of  reading  it,  and 
in  some  cases  of  keeping  it,  a  property  to  the  person  to  whom  the 
letter  is  addressed;  yet,  that  the  gift  is  so  restrained,  that,  beyond 
the  purposes  for  which  the  letter  is  sent,  the  property  is  in  the  sender. 
Under  such  circumstances,  it  is  immaterial  whether  the  intended 
publication  is  for  the  purpose  of  profit  or  not.     If  for  profit,  the  party 

(t)  Macklin  v.  Richardson,  Ambler  694;  Abernethy  v.  Hutchinson,  3  L.  J.  C.  G. 
Ch.  209;  Caird  v.  Sime,  12  App.  Gas.  326;  Mansell  v.  Valley  Printing  Co.,  [1908] 
2  Ch.  441. 

iu)  Pope  V.  Curl,  2  Atk.  342.     See  Philip  v.  Pennell,  [1907]  2  Ch,  577. 

{x)  Lord  Percival  v.  Phipps,  2  Ves.  &  B.  19;  Earl  of  Lytton  v.  Devey,  54  L.  J. 
Ch.  293;  Lord  Ashburton\.  Pape,  [1918]  2  Ch.  469. 

(y)  2  Swanst.  402. 

E.J.  25 


386  EQUITY     JUKISPRUDENCB.  [CH.  XXII. 

is  then  selling ;  if  not  for  profit,  he  is  then  giving  that,  a  portion  of 
which  belongs  to  the  writer. 

§  946.  A  question  has  been  made,  and  a  doubt  has  been  suggested, 
how  far  the  protection  ought  to  be  given,  to  restrain  the  publication  of 
mere  private  letters  on  business  or  on  family  concerns,  or  on  matters 
of  personal  friendship,  and  not  strictly  falling  within  the  line  of  literary 
compositions  (0). 

§  948.  Fortunately  for  public  as  well  as  for  private  peace  and  morals, 
the  learned  doubts  on  this  subject  have  been  overruled;  and  it  is  now 
held,  that  there  is  no  distinction  between  private  letters  of  one  nature 
and  private  letters  of  another.  For  the  purposes  of  pubhc  justice, 
publicly  administered,  according  to  the  established  institutions  of  the 
country,  in  the  ordinary  modes  of  proceeding,  private  letters  may  be 
required  to  be  produced  and  published.  But  it  by  no  means  follows, 
that  private  persons  have  a  right  to  make  such  publications  on  other 
occasions,  upon  their  own  notion  of  taking  the  administration  of 
justice  into  their  own  hands,  or  for  the  purpose  of  vindicating  their 
own  conduct,  or  of  gratifying  their  own  enmity,  or  of  indulging  a  gross 
and  diseased  public  curiosity,  by  the  circulation  of  private  anecdotes,  or 
family  secrets,  or  personal  concerns  (a). 

§  949.  Principles  of  a  similar  nature  have  been  applied  for  the 
assistance  of  persons,  to  whom  letters  are  written,  and  by  whom  they 
are  received,  in  order  to  protect  such  letters  from  publication  in  any 
manner  injurious  to  the  rights  of  property  of  the  lawful  owners 
thereof  (6).  So,  they  have  been  applied  in  all  cases  where  the  publica- 
tion would  be  a  violation  of  a  trust  or  confidence,  founded  in  con- 
tract (c),  or  implied  from  circumstances.  Thus,  for  example,  where 
a  person  delivers  scientific  or  literary  oral  lectures,  it  is  not  competent 
for  any  person  who  is  privileged  to  hear  them,  to  publish  the  substance 
of  them  from  his  own  notes  (d) ;  for  the  admission  to  hear  such  lectures 
is  upon  the  implied  confidence  and  contract,  that  the  hearer  will  not 
use  any  means  to  injure  or  to  take  away  the  exclusive  right  of  the 
lecturer  in  his  own  lectures  (e).  And  one  may  be  restrained  by  injunc- 
tion from  publishing  the  contents  of  documents,  the  knowledge  of  which 
he  obtains  from  the  production  of  the  documents,  as  exhibits,  or  under 
the  order  of  the  court  (/). 

(z)  Perceval  v.  Phipps,  2  Ves.  &  B.  24  to  28. 

(o)  Gee  V.  Pritchard,  2  Swanst.  402;  Philip  v.  Pennell,  [1907]  2  Ch.  577;  Lord 
Ashburton  v.  Pape,  [1913]  2  Ch.  469. 

(b)  Earl  of  Granard  v.  Dunkin,  1  Ball  &  Beat.  207;  Thompson  v.  Stanhope, 
Ambler  737. 

(c)  See  Lord  Perceval  v.  Phipps,  2  Ves.  &  B.  19,  27. 

(d)  Abemethy  v.  Hutchinson,  3  L.  J.  0.  S.  Ch.  209;  Nichols  v.  Pitman,  26  Ch.  D. 
374;  Gaird  v.  Sime,  12  App.  Cas.  326. 

(e)  Williams  v.  Prince  of  Wales  Life  Ins.  Co.,  23  Beav.  338;  Hopkinson  v  Lord 
Burghley,  L.  R.  2  Ch.  447. 

(/)  Macklin  v.  Richardson,  Ambler,  694;  Morris  v.  Kelly,  1  Jao.  &  W.  481. 


§  946—9516.]  INJUNCTIONS.  387 

§  950.  So,  where  a  dramatic  performance  has  been  allowed  by  the 
author  to  be  acted  at  a  theatre,  no  person  has  a  right  to  pirate  such 
performance,  and  to  publish  copies  of  it  surreptitiously ;  or  to  act  it  at 
another  theatre  without  the  consent  of  the  author  or  proprietor;  for 
his  permission  to  act  it  at  a  public  theatre  does  not  amount  to  an  aban- 
donment of  his  title  to  it,  or  to  a  dedication  of  it  to  the  public  at  large. 

§  951.  So,  an  injunction  will  be  granted  ggainst  publishing  a  maga- 
zine in  a  party's  name  who  has  ceased  to  authorize  it  (g);  so,  to 
restrain  the  directors  of  a  joint-stock  company  from  publishing  a 
prospectus,  which,  without  authority,  stated  A.  to  be  a  trustee  of  the 
company  (h);  or,  from  using  the  name  of  a  newspaper,  published  by 
.the  plaintiff,  for  the  fraudulent  purpose  of  deceiving  the  public,  by 
suggesting  to  the  public  that  the  plaintiff  was  in  some  way  interested 
in  the  concern  (i).  So,  an  injunction  will  be  granted  against  vending 
an  article  of  trade  under  the  assumed  name  of  a  party,  or  with  false 
labels,  to  the  injury  of  the  same  party,  who  has  already  acquired  a 
reputation  in  trade  by  it  (fe).  So,  an  injunction  will  be  granted  to 
restrain  the  owner  from  running  omnibuses,  having  on  them  such  names 
and  words,  and  devices,  as  to  form  a  colourable  imitation  of  the  words, 
names,  and  devices  on  the  omnibuses  of  the  plaintiff;  for  this  has  a 
natural  tendency  to  deprive  the  plaintiff  of  the  fair  profits  of  his  busi- 
ness, by  attracting  custom  under  the  false  representation  that  the 
omnibuses  of  the  defendant  belong  to  and  are  under  the  management 
of  the  plaintifi  (I).  So,  an  injunction  will  be  granted  to  prevent  the  use 
of  names,  marks,  letters,  or  other  indicia  of  a  tradesman,  by  which  to 
pass  off  goods  to  purchasers  as  the  manufacture  of  that  tradesman, 
when  they  are  not  so  (m). 

§  951a.  In  applications  for  injunctions  for  using  trade  marks,  the 
plaintiff  must  come  into  court,  however,  with  clean  hands.  If  he  has 
himself  been  using  false  marks,  or  indulged  in  practices  tending  to 
deceive  the  public,  relief  may  be  refused  in  a  court  of  equity  (n). 

§  951b.  And  where  one  sells  his  share  in  a  partnership  business  then 
in  operation,  it  imports  the  sale  of  the  goodwill  of  the  business.  This 
comprehends  every  positive  advantage  which  has  been  acquired  by  the 
firm  in  carrying  on  its  business,  whether  connected  with  the  place  or 
the  name  of  the  firm;  but  it  does  not  imply  a  prohibition  against  the 
retiring  partner  carrying  on  the  same  business  in  the  same  place,  so 
that  he  do  it  under  such  a  name  as  not  to  give  the  impression  that  he 

ig)  Hogg  v.  Kirby,  8  Ves.  215. 

(h)  Routh  v.  Webster,  10  Beav.  561. 

(i)  Walter  v.  Ashton,  [1902]  2  Ch.  282. 

(fe)  Croft  v.  Day,  7  Beav.  84;  Burgess  v.  Burgess,  3  De  G.  M.  &  G.  896;  Turton 
V.  Turton,  i2  Ch.  D.  128. 

(I)  Knott  V.  Morgan,  2  Keen  213. 

(m)  Wortherspoon  v.  Currie,  L.  E.  S  H.  L.  508;  Reddaway  v.  Banham,  [1896] 
A.  C.  199. 

(n)  Perry  v.  Truefitt,  6  Beav.  66;  Newman  v.  Pinto,  S7  L.  T.  31. 


388  EQUITY     JURISPRUDENCE.  [CH.   XXII. 

is  the  successor  of  the  old  firm  (o).  On  the  sale  of  the  goodwill  of  a 
business  the  purchaser  is  entitled  to  use  the  vendor's  name  for  ordinary 
business  purposes  (p),  but  only  on  condition  that  he  does  not,  by  so 
doing,  expose  the  vendor  to  any  liability  (q) ;  and  if,  on  the  sale  of  a 
business,  the  goodwill  is  not  expressly  assigned,  there  is  no  right  on  the 
part  of  the  purchaser  to  use  the  firm  name  (r). 

§  951c.  A  leading  case  in  regard  to  the  extent  of  the  jurisdiction 
of  courts  of  equity,  as  to  their  remedial  justice  by  way  of  injunction, 
is  the  Emperor  of  Austria  v.  Day  and  Kossuth  (s) ;  where  it  was  held 
that  the  plaintiff,  although  not  entitled  to  an  injunction  from  a  court  of 
equity  in  England  to  stop  any  proceedings  there,  the  object  and 
tendency  of  which  might  be  to  abridge  or  destroy  his  prerogative  rights, 
and  interests  as  a  foreign  sovereign  with  whom  the  government  was  on 
terms  of  amity,  might  maintain  an  action  to  restrain  the  defendant 
from  manufacturing  notes  of  an  insurrectionary  government,  as  it 
affected  his  proprietary  rights  in  respect  of  the  circulating  medium. 
So  a  plaintiff  resident  abroad  may  obtain  the  assistance  of  English  courts 
to  restrain  the  defendant  from  acts  calculated  to  lead  people  to  believe 
that  the  goods  of  the  defendant  sold  in  England  are  those  of  the  plain- 
tiff (t).  But  there  is  no  jurisdiction  to  restrain  the  defendant  from 
committing  a  tort  outside  the  jurisdiction  of  English  courts  (u). 

§  951d.  Before  the  Judicature  Acts  it  was  held  that  the  Court  of 
Chancery  had  no  power  by  injunction  to  restrain  the  publication  of  a 
libel,  because  its  power  was  confined  to  cases  where  there  was  injury, 
either  actual  or  prospective,  to  property  (x),  but  under  the  extensive 
powers  conferred  by  36  &  37  Vict.  c.  66,  s.  25,  sub-s.  8,  which  enacts, 
inter  alia,  that  an  injunction  may  be  granted  by  an  interlocutory  order 
of  the  court,  in  all  cases  in  which  it  shall  appear  to  the  court  to  be  just 
or  convenient  that  such  order  should  be  made,  it  is  held  that  an  injunc- 
tion can  now  be  granted  to  restrain  the  publication  of  libellous 
matter  (y),  or  false  representations  calculated  to  injure  the  plaintifi's 
trade  (z).     This  can  be  done  even  on  an  interlocutory  application,  but 

(o)  Trego  v.  Hunt,  [1896]  A.  C.  7  ;  Burchell  v.  Wilde,  [1900]  1  Ch.  551 ;  Curl 
Brothers  v.  Webster,  [1904]  1  Ch.  685. 

(p)  Levy  v.  Walker,  10  Ch.  D.  436. 

(q)  Thynn.!  v.  Shove,  45  Ch.  D.  577,  582. 

(r)  Gray  v.  Smith,  43  Ch.  D.  208. 

(«)  3  De  Q.  P.  &  J.  217. 

(t)  Collins  Co.  V.  Broicn,  3  K.  &' J.  423;  Collins  Co.  v.  Gurwen,  3  K.  &  J.  428; 
Sociite  Anonyme  Panhard  et  Levassor  v.  Panhard  Levassor  Motor  Co.,  [1901]  2 
Ch.  513. 

(u)  Morocco  Bound  Syndicate  v.  Harris,  [1895]  1  Ch.  534;  Cp.  Lecouturier  v. 
Reg.,  [1910]  A.  C.  262. 

(x)  Prudential  Assurance  Company  v.  Knott,  10  Ch.  142. 

(y)  Saxby  v.  Easterbrook,  3  C.  P.  D.  339;  Hill  v.  Hart-Davies,  21  Ch.  D.  298; 
Thomas  v.  Edwards,  14  Ch.  D.  284;  Liverpool  Household  Stores  Association  v  Smith, 
37  D.  Ch.  170. 

(z)  Thorley's  Cattls  Food  Company  v.  Massam,  6  Ch.  D.  582;  Spalding  v. 
Gamage  (No.  2),  84  L.  J.  Ch.  449. 


§  951c— 953.]  INJUNCTIONS,  389 

the  court  should  be  slow  to  act.  For,  to  justify  the  court  in  granting 
an  interim  injunction,  it  must  come  to  a  decision  upon  the  question 
of  libel  or  not  libel  before  the  jury  have  decided  whether  it  is  a  libel  or 
not.  Therefore  the  jurisdiction  is  of  a  delicate  nature.  It  ought  only 
to  be  exercised  in  the  clearest  cases,  where  any  jury  would  say  that 
the  matter  complained  of  was  libellous,  and  where  if  the  jury  did  not 
so  find,  the  court  would  set  aside  the  verdict  as  unreasonable  (a).  And 
an  interlocutory  injunction  will  never  be  granted  unless  there  is  some 
reason  to  suppose  that  injury  will  be  done  either  to  the  person  or  the 
property  of  the  plaintiff  (b).  So,  on  the  same  principle,  the  court  has 
jurisdiction  to  restrain  a  person  from  making  slanderous  statements, 
calculated  to  injure  the  business  of  another  person,  even  though  such 
statements  be  made  orally,  and  not  by  writing  or  printing  (c) ;  but  in 
this  case,  also,  the  jurisdiction  should  be  exercised  with  great  care  (d). 
But  the  court  will  not  restrain,  by  an  interim  injunction,  trade  circulars 
honestly  issued,  even  though  calculated  to  damage  the  plaintiff's  busi- 
ness, unless  there  is  a  very  strong  prima  facie  case  on-  the  evidence 
before  the  court  that  there  is  a  violation  qt  some  contract  entered  into 
between  the  plaintiff  and  the  defendant  (e). 

§  952.  Upon  similar  grounds  of  irreparable  mischief,  courts  of 
equity  will  restrain  a  party  from  making  a  disclosure  of  secrets  com- 
municated to  him  in  the  course  of  a  confidential  employment.  And 
it  matters  not,  in  such  cases,  whether  the  secrets  be  secrets  of  trade  or 
secrets  of  title,  or  any  other  secrets  of  the  party  important  to  his 
interests  (/).  Thus,  a  party  has  been  restrained  from  using  the  secret 
of  compounding  a  medicine  not  protected  by  patent,  when  it  appeared 
that  the  secret  was  imparted  to  him,  to  his  own  knowledge,  in  breach 
of  faith  or  contract,  on  the  part  of  the  person  so  communicating  it  (g). 

§  953.  Before  closing  this  subject,  we  shall  now  proceed  to  state  a 
few  other  cases  of  special  injunctions,  in  order  more  fully  to  illustrate 
the  nature  and  linaits  of  the  jurisdiction,  and  the  importance  of  it,  to 
prevent  a  total  failure  of  remedial  justice.  There  are,  for  instance, 
many  cases,  in  which  courts  of  equity  will  interfere  by  injunction,  to 
prevent  the  sale  of  real  estates;  as  to  restrain  the  vendor  from  selling 
to  the  prejudice  of  the  vendee,  pending  an  action  for  the  specific  per- 
formance of  a  contract  respecting  an  estate ;  for  it  might  put  the  latter 

(a)  Quartz  Hill  Consolidated  Gold  Mining  Company  v.  Beall,  20  Ch.  D.  501; 
Bonnard  v.  Ferryman,  [1891]  2  Ch.  269. 

(b)  Salomons  v.  Knight,  [1891]  2  Ch.  294. 

(c)  Hermann  Loog  v.  Bean,  26  Ch.  D.  306;  Hayward  v.  Hayward,  34  Ch.  D.  198. 
{d)  Hermann  -Loog  v.  Bean,  26  Ch.  D.  306;  see  p.  317. 

(e)  Sociiti  Anonyme  des  Manufactures  de  Glaces  v.  Tilghman's  Patent  Sand 
Blast  Company,  25  Ch.  D.  1;  Tallerman  v.  Dowsing  Radiant  Heat  Co.,  [1900]  1 
Ch.  1. 

(/)  Cholmondeley  v.  Clinton,  19  Ves.  261,  267 ;  Youatt  v.  Winyard,  1  Jao.  & 
Walk.  394;  Prince  Albert  v.  Strange,  1  Mac.  &  G.  25. 

(g)  Morison  v.  Moat,  9  Hare  255;  Amber  Size  and  Chemical  Co.  v.  Manzel, 
[1913]  2  Ch.  239. 


390  EQUITY     JURISPRUDENCE.  [CH.  XXII. 

to  the  expense  of  making  the  purchaser  a  party,  in  order  to  give  perfect 
security  to  his  title  (h).  But  if  the  contract  is  not  clearly  enforceable 
the  jurisdiction  will  not  be  exercised  (i). 

§  954.  In  like  manner,  sales  may  be  restrained  in  all  cases  where 
they  are  inequitable,  or  may  operate  as  a  fraud  upon  the  rights  or 
interests  of  third  persons ;  as  in  cases  of  trusts  and  special  authorities, 
where  the  party  is  abusing  his  trust  or  authority  (k).  And  where  sales 
have  been  made  to  satisfy  certain  trusts  and  purposes,  and  there  is 
danger  of  a  misapplication  of  the  proceeds,  courts  of  equity  will  also 
restrain  the  purchaser  from  paying  over  the  purchase-money  (l).  And, 
genf^rally,  where  the  necessity  of  the  case  requires  it,  a  court  of  equity 
will  interfere  to  prevent  a  defendant  from  affecting  property  in  litiga- 
tion, by  contracts,  conveyances,  or  other  acts  (w). 

§  955.  Cases  of  injunctions  against  a  transfer  of  stocks,  of  annuities, 
of  ships,  and  of  negotiable  instruments,  furnish  an  appropriate  illus- 
tration of  the  same  principle  (n) ;  as  also  do  injunctions  to  restrain 
husbands  from  transferring  property  in  fraud  of  the  legal  or  equitable 
rights  of  their  wives  (o).  - 

§  955a.  The  question  has  been  made,  how  far  a  court  of  equity  has 
jurisdiction  to  interfere  in  cases  of  public  functionaries,  who  are  exer- 
cising special  public  trusts  or  functions.  As  to  this,  the  established 
doctrine  now  is,  that  so  long  as  those  functionaries  strictly  confine 
themselves  within  the  exercise  of  those  duties  which  are  confided  to 
them  by  the  law,  this  court  will  not  interfere.  The  court  will  not  inter- 
fere to  see  whether  any  alteration  or  regulation  which  they  may  direct 
is  good  or  bad;  but,  if  they  are  departing  from  that  power  which  the 
law  has  vested  in  them,  if  they  are  assuming  to  themselves  a  power 
over  property  which  the  law  does  not  give  them,  this  court  no  longer 
considers  them  as  acting  under  authority  of  their  commission,  but  treats 
them,  whether  they  be  a  corporation  or  individuals,  merely  as  persons 
dealing  with  property  without  legal  authority  (p). 

§  956.  We  have  already  had  occasion  to  take  notice  of  the  granting 
of  injunctions  in  the  cases  of  persons  having  future  interests  in  chattels, 
as  in  remainder  after  an  immediate  estate  for  life  (g).  The  same  prin- 
ciple is  applied  to  cases  of  personal  property,  bequeathed  as  heirlooms, 

(fe)  Echliff  V.  Baldwin,  16  Ves.  267 ;  Curtis  v.  Marquis  of  Buckingham,  3  Ves. 
&  B.  168;  Metropolitan  Railway  v.  Woodhouse,  34  L.  J.  Ch.  297.  See  ante  §  406, 
908. 

(t)  Hadley  v.  London  Bank  of  Scotland,  3  De  G.  J.  &  S.  63. 

(k)  Anon.,  6  Mad.  10;  Parrott  v.  Congreve,  18  L.  J.  Ch.  279. 

(l)  Green  v.  Lowes,  3  Bro.  C.  C.  217 ;  Matthews  v.  Jones,  2  Anst.  506. 

(m)  Great  Western  Ry.  v.  Birmingham,  dc,  Ry.,  2  Phil.  597;  Shrewsbury  and 
Chester  Ry.  v.  Shrewsbury  and  Birmingham  Ry.,  1  Sm.  N.  S.  410. 

(n)  Lord  Chedworth  v.  Edwards,  8  Ves.  46;  Hood  v.  Aston,  1  Euss.  412;  Stead 
V.  Clay,  1  Sim.  294;  4  Euss.  550;  ante,  §  907. 

(o)  Flight  V.  Cook,  2  Ves.  Sen.  619;  Roberts  v.  Roberts,  2  Cox  422. 

(p)  Frewin  v,  Lewis,  4  Myl.  &  Cr.  250. 

(g)  Ante,  §§  843,  844. 


§  954 — 958a.]  injunctions.  391 

or  settled  in  trust  to  go  with  particular  estates.  Thus,  for  example, 
household  furniture,  plate,  pictures,  statues,  books,  and  libraries,  are 
often  bequeathed  or  settled  in  trust,  to  go  with  the  title  of  certain 
family  mansions  and  estates.  In  such  cases,  courts  of  equity  will 
enforce  a  due  observance  of  the  trust,  and  restrain  the  parties  having 
a  present  possession  from  wasting  the  property  or  doing  any  acts  incon- 
sistent with  the  trust  (r). 

§  957.  Injunctions  will  also  be  granted  in  urgent  cases  to  restrain 
the  sailing  of  a  ship,  upon  the  application  of  a  part-owner  whose  shai-e 
is  unascertained,  in  order  to  ascertain  that  share,  and  to  obtain  the 
usual  security,  given  in  the  admiralty,  for  the  due  return  of  the  ship  (s), 
or  upon  the  application  of  ^he  buyer,  to  enforce  specific  performance 
of  a  contract  for  the  sale  and  purchase  of  a  ship  (t).  So,  they  will  be 
granted  against  the  removal  of  timber,  which  has  been  wrongfully  cut 
down  (u). 

§  958.  Injunctions  will  also  be  granted  to  compel  the  due  observ- 
ance of  personal  negative  covenants  (x).  Thus,  in  the  old  case  of  the 
parish  bell,  where  certain  persons  owning  a  house  in  the  neighbourhood 
of  a  church  entered  into  an  agreement  to  erect  a  cupola  and  clock,  Jn 
consideration  that  the  bell  should  not  be  rung  at  five  o'clock  in  the 
morning  to  their  disturbance.  The  agreemeijt  being  violated,  an 
injunction  was  afterwards  granted  to  prevent  the  bell  being  rung  at 
that  hour  (j/).  Upon  the  same  ground  a  celebrated  play-writer,  who 
had  covenanted  not  to  write  any  dramatic  performances  for  another 
theatre,  was,  by  injunction,  restrained  from  violating  the  covenant  (a). 
So,  an  author,  who  had  sold  his  copyright  in  a  work,  and  covenanted  not 
to  publish  any  other  to  its  prejudice,  was  restrained  by  injunction 
from  so  doing  (a). 

§  958a.  Notwithstanding  some  apparent  vacillation  in  the  decisions 
of  the  courts  of  equity,  in  regard  to  the  propriety  of  enforcing  the 
negative  portion  of  a  contract  by  injunction,  where  they  cannot  enforce 
the  specific  performance  of  the  affirmative  counter  stipulations,  which 
constitute  the  main  basis  of  the  contract,  it  seems  now  to  be  estab- 
lished that  the  court  will  interfere  to  prevent  the  violation  of  a  negative 
stipulation  in  a  contract  under  the  circumstances  mentioned;  but  it 
must  now  be  considered  as  settled    law,    tiiat    in    the   absence    of   a 

(r)  Ante,  §§  843,  844,  and  note,  §  845;  Gadogan  v.  Rennet,  Cowp.  435,  436;  Co. 
Litt.  20  a,  Hargrave's  note  (5). 

(s)  Haley  v.  Goodson,  1  Meriv.  77;  Ghristie  v.  Craig,  2  Mer.  137.  See  CastelU 
V.  Gook,  7  Hare,  89. 

(t)  Hart  V.  Herwig,  L.  E.  8  Ch.  860. 

(u)  Anon.,  I  Ves.  Jun.  93. 

(x)  Ante,  §  710,  718,  721,  722,  850. 

iy)  Martin  v.  Nutkin,  2  P.  Will.  266. 

(z)  Morris  v.  Colman,  18  ^'  j.  437. 

(a)  Barfield  v.  Nicholson,  2  Sim.  &  Stu.  1 ;  Ingram  v.  Stiff,  5  Jur.  N.  S.  947. 


392  EQUITY     JURISPRUDENCE.  [CH.   XXII. 

negative  stipulation  in  an  agreement  for  service,  the  remedy  of 
injunction  will  not  be  available,  whatever  other  remedies  are  open  to 
a  plaintiff  (b). 

§  959.  Courts  of  equity  also  used  to  interfere,  and  effectuate  their 
own  decrees  in  many  cases  by  injunctions,  in  the  nature  of  a  judicial 
writ  or  execution  for  possession  of  the  property  in  controversy;  as,  for 
example,  by  injunctions  to  yield  up,  deliver,  quiet,  or  continue  the 
possession,  followed  up  by  a  writ  of  assistance  (c).  Injunctions  of  this 
sort  are  older  than  the  time  of  Lord  Bacon,  since,  in  his  Ordinances, 
they  are  treated  as  a  well-known  process.  Indeed,  they  have  been  dis- 
tinctly traced  back  to  the  reign  of  Elizabeth  and  Edward  the  Sixth,  and 
even  of  Henry  the  Eighth  (d).  In  some  respects  they  bore  an  analogy 
to  sequestrations ;  but  the  latter  process,  at  least  since  the  reign  of 
James  the  First,  has  been  applied  not  merely  to  the  lands  in  con- 
troversy in  the  cause,  but  also  to  other  lands  of  the  party  (e).  This 
form  of  injunction  is  now  obsolete. 

(b)  Lumley  v.  Wagner,  1  De  G.  M.  &  G.  604;  Whitwood  Chemical  Co.  v.  Hard. 
man,  [1891]  2  Ch.  416. 

(c)  Penn  v.  Lord  Baltimore,  1  Ves.  Sen.  454;  Dove  v.  Dove,  1  Cox  101;  s.o.  1 
Bro.  C.  C.  373;  2  Dick.  617;  Huguenin  v.  Baseley,  15  Ves.  180. 

(d)  Beam.  Ord.  Ch.  15,  16. 

(e)  Ibid,  and  note  (c),  p.  363;  id.  16,  and  note  55;  Barton,  Suit  in  Eq.  87 ;  2  Mad. 
Pr.  Ch.  163. 


§  959—962.1  TRUSTS.  393 


CHAPTER   XXIII. 


EXCLUSIVE    JURISDICTION — TRUSTS. 


§  960.  Having  taken  the  general  s.urvey  of  equity  jurisprudence  in 
cases  of  concurrent  jurisdiction,  we  shall,  in  the  next  place,  proceed 
to  the  consideration  of  another  head  proposed  in  these  Commentaries, 
that  of  Exclusive  Jurisdiction.  And  this  again,  like  the  former 
head,  is  divisible  into  two  branches :  the  one  dependent  upon  the 
subject-matter,  the  other  upon  the  nature  of  the  remedy  to  be 
administered.  The  former  comprehends  Trusts,  in  the  largest  and 
most  general  sense  of  the  word,  whether  they  are  express  or  implied, 
direct  or  constructive,  created  by  the  parties,  or  resulting  by  operation 
of  law.  The  latter  comprehends  all  those  processes  or  remedies, 
which  are  peculiar  and  exclusive  in  courts  of  equity,  and  through  the 
instrumentality  of  which  they  endeavour  to  reach  the  purposes  of 
justice  in  a  manner  unknown  or  unattainable  at  law. 

§  961.  And,  in  the  first  place,  let  us  examine  the  nature  and 
extent  of  the  jurisdiction  of  courts  of  equity  in  matters  of  trust, 
which  will  be  found  directly  or  remotely  to  embrace  most  of  the 
subjects  of  their  exclusive  jurisdiction.  It  has  been  well  observed, 
that  the  principles  of  law,  which  guided  the  decisions  of  the  courts  of 
common  law,  were  principally  formed  in  tdmes  when  the  necessities 
of  men  were  few,  and  their  ingenuity  was  little  exercised  to  supply 
their  wants.  Hence,  it  has  happened,  that  there  are  many  rights 
according  to  the  principles  of  natural  and  universal  justice,  for 
injuries  to  which  the  law,  as  administered  by  those  courts,  has 
provided  no  remedy.  This  is  particularly  the  case  in  matters  of  trust 
and  confidence,  of  which  the  ordinary  courts  of  law,  in  a  vast  variety 
of  instances,  take  no  cognizance.  The  positive  law  being  silent  on 
the  subject,  courts  of  equity,  considering  the  conscience  of  the  party 
intrusted,  as  bound  to  perform  the  trust,  in  order  to  prevent  a  total 
failure  of  justice,  interfered  to  compel  the  performance  of  it.  And,  as 
they  will  compel  the  performance  of  the  trust,  so,  on  the  other  hand, 
they  will  assist  the  trustees,  and  protect  them  in  the  due  performance 
of  the  trust,  whenever  they  seek  the  aid  and  direction  of  the  court 
as  to  the  establishment,  the  management,  or  the  execution  of  it. 

§  962.  For  the  most  part,  indeed,  matters  of  trust  and  confidence 
are  exclusively  cognizable  in  courts  of  equity;  there  being  few  cases, 
except    bailments,    and    rights    founded    in    contract,    and    formerly 


394  EQUITY     JURISPRUDENCE.  [CH.    XXIII. 

remedial  by  an  action  of  assumpsit,  and  especially  by  an  action  for 
money  had  and  received,  in  which  a  remedy  could  ever  have  been 
given  in  the  courts  of  law.  Thus,  for  example,  a  debt,  or  chose  in 
action,  was  not  generally  assignable,  at  law,  except  in  cases  of 
negotiable  instruments.  And,  hence,  the  assignee  was  ordinarily 
compellable  to  seek  redress  against  the  assignor  and  the  debtor  solely 
in  courts  of  equity. 

§  963.  It  is  not  within  the  design  of  these  Commentaries  to  enter 
upon  a  minute  examination  of  the  nature  and  peculiarities  of  trusts, 
as  known  to  English  jurisprudence,  or  to  attempt,  by  any  develop- 
ment of  the  history  of  their  rise  and  progress,  to  ascertain  the  exact 
boundaries  of  the  jurisdiction  at  present  exercised  over  them.  In 
general,  it  may  be  said,  that  trusts  constitute  a  very  important  and 
comprehensive  branch  of  equity  jurisprudence ;  and  that,  when  the 
remedy  in  regard  to  them  ends  at  law,  then  the  exclusive  jurisdiction 
in  equity,  for  the  most  part,  begins. 

§  964.  A  trust,  in  the  most  enlarged  sense  in  which  that  term  is 
used  in  English  jurisprudence,  may  be  defined  to  be  an  equitable 
right,  title,  or  interest  in  property,  real  or  personal,  distinct  from  the 
legal  ownership  thereof  (a).  In  other  words,  the  legal  owner  holds  the 
direct  and  absolute  dominion  over  the  property  in  the  view  of  the 
law;  but  the  income,  profits,  or  benefits  thereof  in  his  hands,  belong 
wholly,  or  in  part,  to  others.  The  legal  estate  in  the  property  is 
thus  made  subservient  to  certain  uses,  benefits,  or  charges  in  favour 
of  others ;  and  these  uses,  benefits,  or  charges  constitute  the  trusts 
which  courts  of  equity  will  compel  the  legal  owner,  as  trustee,  to 
perform  in  favour  of  the  cestui  que  trust,  or  beneficiary.  Three  things 
are  said  to  be  indispensable  to  constitute  a  valid  trust :  first,  sufficient 
words  to  raise  it;  secondly,  a  definite  subject;  and  thirdly,  a  certain 
or  ascertained  object  (b). 

§  965.  It  is  in  the  highest  degree  probable,  that  those  trusts, 
which  are  exclusively  cognizable  in  courts  of  equity,  were,  in  their 
origin,  derived  from  the  Eoman  law,  being  very  similar,  in  their 
nature,  to  the  fidei  commissa  of  that  law.  As  the  jurisdiction  of  a 
peculiar  praetor  was  created  for  the  express  purpose  of  protecting 
property  fidei  oommissum,  so  the  jurisdiction  of  our  courts  of  equity, 
if  not  created,  was  soon  extended,  for  the  purpose  of  protecting  and 
enforcing  the  execution  of  trusts.  Indeed,  it  is  impossible  to  suppose, 
that  in  a  country  professing  to  have  an  enlightened  jurisprudence, 
obligations  and  trusts  in  regard  to  property,  binding  in  conscience 
and  duty,  and  which,  ex  sequo  et  bono,  the  party  ought  to  perform, 
should   be   left   without   any    positive    means    of    securing   their    due 

(o)  Lord  Hardwicke,  in  Sturt  v.  MelUsh,  2  Atk.  612,  said  :  "  A  trust  is,  where 
there  is  such  a  confidence  between  parties,  that  no  action  at  law  will  lie ;  but  is  merely 
a  case  for  the  consideration  of  this  court." 

(b)  Malim  v.  Keighley,  2  Ves.  J.  333,  529;  Cruwys  v.  Colman,  9  Ves.  323. 


§  963—968.]  TRUSTS.  395 

» 

fulfilment;  or  that  they  might  be  violated  without  rebuke,  or  evaded 
with  impunity. 

§  966.  In  the  Institutes  of  Justinian,  a  summary  account  is  given 
of  the  origin  and  nature  at  the  Roman  fidei  commissa.  It  is  there 
observed,  that  anciently  all  trusts  were  unenforceable  (precarious) ;  for 
no  man  could,  without  his  own  consent,  be  compelled  to  perform  what 
he  was  requested  to  do.  But,  when  testators  were  unable  directly  to 
bequeath  an  inheritance  or  legacy  to  certain  persons,  if  they  did 
bequeath  it  to  them,  they  gave  it  in  trust  to  other  persons,  who  were 
capable  of  taking  it  by  will.  And  therefore  such  bequests  were  called 
trusts  {fidei  commissa),  because  they  could  not  be  enforced  by  law, 
but  depended  solely  on  the  honour  of  those  to  whom  they  were 
intrusted.  Afterwards,  the  Emperor  Augustus,  having  been  frequently 
solicited  in  favour  of  particular  persons,  either  on  account  of  the 
solemn  adjurations  of  the  party,  or  on  account  of  the  gross  perfidy  of 
other  persons,  commanded  the  consuls  to  interpose  their  authority. 
This,  being  a  just  and  popular  order,  was  by  degrees  converted  into  a 
permanent  jurisdiction.  So  great,  indeed,  was  the  favour  in  which 
trusts  were  held,  that  at  length  a  special  praetor  was  created  to 
pronounce  judgment  in  cases  of  trusts;  and  hence  he  was  called  the 
Commissary  of  Trusts  (Fidei  Commissarius)  (c). 

§  967.  This  brief  sketch  of  the  origin  and  nature  of  trusts  in  the 
civil  law  does,  in  a  very  striking  manner,  illustrate  the  origin  and 
nature  of  trusts  in  the  common  law  of  England,  in  regard  to  real 
property.  It  has  been  well  remarked  by  Mr.  Justice  Blackstone,  that 
uses  and  trusts  in  English  jurisprudence  are,  in  their  original,  of  a 
nature  very  similar,  or  rather  exactly  the  same,  answering  more  to 
the  fidei  commissum  than  to  -the  usus  jructus  of  the  civil  law;  the 
latter  being  the  temporary  right  of  using  a  thing,  without  having  the 
ultimate  property  or  full  dominion  of  the  substance  (d). 

§  968.  Lord  Coke,  describing  the  nature  of  a  use  or  trust  in  land 
according  to  the  common  law,  uses  the  following  language :  A  use  is 
a  trust  or  confidence  reposed  in  some  other,  which  is  not  issuing  out 
of  the  land,  but  as  a  thing  collateral,  annexed  in  privity  to  the  estate 
of  the  land,  and  to  the  person  touching  the  land,  scilicet,  that  cesiui 
que  use  (the  beneficiary)  shall  take  the  profit,  and  that  the  term-tenant 
shall  make  an  estate  according  to  his  direction.  So,  a  cestui  que  use 
had  neither  jus  in  re  nor  ]us  ad  rem,  but  only  a  confidence  and  trust 
for  which  he  had  no  remedy  by  the  common  law;  but  for  breach  of 
trust  his  remedy  was  by  subpoena  in  chancery  (e).  Thus,  we  see,  that 
the  original  fiduciary  estate,  from  its  nature,  imparted  a  right  to  the 

(c)  Inst.  B.  2,  tit.  23,  §  1;  2  Black  Comm.  327,  328;  Bao.  on  Uses,  19. 

(d)  Black  Comm.  327;  Bac.  on  Uses,  19. 

(e)  Co.  Litt.  272  b;  Chudleigh's  Case,  1  Co.  121,  a,  b ;  Bac.  Abr.  Uses  and 
Trusts,  A.  B. 


396;  EQUITY     JURISPRUDENCE.  [CH.    XXIII. 

enjoyment  of  the  profits  of  the  land,  as  distinct  from  the  seisin  of  the 
land,  and  the  rights  issuing  thereout. 

§  969.  The  introduction  of  uses  and  trusts  into  England  has  been 
generally  attributed  to  the  ingenuity  of  the  clergy,  in  order  to  escape 
from  the  prohibitions  of  the  Mortmain  Acts.  But  whether  this  be 
the  true  origin  of  them  or  not,  it  is  very  certain  that  the  general 
convenience  of  them  in  subserving  the  common  interests  of  society, 
as  well  as  in  enabling  parties  to  escape  from  forfeitures  in  times  of 
civil  commotion,  soon  gave  them  an  extensive  public  approbation,  and 
secured  their  permanent  adoption  into  the  system  of  English  juris- 
prudence (/).  And  they  have  since  been  applied  to  a  great  variety  of 
cases,  which  never  could  have  been  in  the  contemplation  of  those  who 
originally  introduced  them;  but  which,  nevertheless,  are  the  natural 
attendants  upon  a  refined  and  cultivated  state  of  society,  where  wealth 
is  widely  diffused,  and  the  necessities  and  conveniences  of  families,  of 
commerce,  and  even  of  the  ordinary  business  of  human  life,  require 
that  trusts  should  be  established,  temporary  or  permanent,  limited  or 
general,  to  meet  the  changes  of  past  times,  as  well  as  to  provide  for 
the  exigencies  of  times  to  come  (g). 

§  970.  According  to  the  spirit  of  over-nice  and  curious  learning 
belonging  to  the  age,  uses  in  lands,  upon  their  introduction  into 
English  jurisprudence,  were  refined  upon  with  many  elaborate  dis- 
tinctions, to  cure  the  mischiefs  arising  from  which  the  Statute  of 
Uses  of  27  Henry  VIII.  ch.  10,  was  enacted,  the  general  intent 
of  which  was  to  transfer  the  use  into  possession,  and  to  make  the 
cestui  que  use  complete  owner  of  the  lands,  as  well  at  law  as  in 
equity.  But  as  the  statute  did  not  in  its  terms  apply  to  all  sorts 
of  uses,  and  was  construed  not  to  apply  to  uses  ingrafted  on  uses 
(which  constitute  one  great  class  of  modern  trusts  in  lands),  it 
failed  in  a  great  measure  to  accomplish  the  ends  for  which  it  was 
designed  (h).  Thus,  for  example,  it  was  held  not  to  apply  to  trusts 
or  uses  created  upon  term  of  years;  or  to  trusts  of  a  nature  requiring 
the  trustee  still  to  hold  out  the  estate,  in  order  to  perform  the  trusts; 
and,  generally,  not  to  trusts  created  in  relation  to  mere  personal 
property  (i). 

(/)  2  Black.  Comm.  328,  329;  Bac.  Abr.  Uses  and  Trusts,  A.  B. ;  Gilb.  Lex  Pr»t. 
259,  260.  See  also  Lloyd  v.  Spillet,  2  Atk.  149,  150 ;  Hopkins  v.  Hopkins,  1  Atk.  591 ; 
ante,  §  48. 

(g)  2  Black.  Comm.  330. 

(h)  2  Black.  Comm.  332,  333;  Butler's  note  (231)  to  Co.  Litt.  271  b. 

(i)  2  Black.  Comm.  335  to  337;  Butler's  note  (1)  to  Co.  Litt.  290  b,  and  to  Co. 
Litt.  271  b,  note  (1),  iii.  §  5;  Bac.  Abr.  Uses  and  Trusts,  B.,  C,  D.,  G.,  2  H. ;  Bac. 
Abr.  Trusts,  A.  It  is  said,  that  a  tenant  by  the  curtesy  cannot  stand  seised  to  a  use, 
for  he  is  in  by  the  act  of  law  in  consideration  of  marriage,  and  not  in  privity  of 
estate;  and  for  a  like  reason  also  tenant  in  dower,  by  the  better  opinion,  cannot  stand 
seised  to  a  use.  Sanders  on  Uses,  ch.  1,  §  11,  pp.  62,  63.  But  in  equity  such  a  tenant 
would  nevertheless  be  affected  by  the  use  or  trust. 


§  969—973.]  TRUSTS.  397 

§  971.  In  regard  to  uses,  it  seems  formerly  to  have  been  a  matter 
of  considerable  doubt,  whether  at  the  common  law  they  could  be 
raised  by  parol,  or  even  by  writing  without  a  seal.  Lord  Chief  Baron 
Gilbert  has  extracted  a  distinction  from  the  different  cases,  which  will 
in  some  measure  reconcile  their  apparent  contrariety.  It  is  in  effect 
that  a  use  might  be  raised  at  the  common  law  by  parol  upon  any 
conveyance  which  operated  by  way  of  transmutation  of  possession,  or 
passed  the  possession  by  some  solemn  act,  such  as  a  feoffment ;  since 
the  estate  itself  might,  by  the  common  law,  pass  by  a  parol  feoffment; 
and  therefore,  by  the  same  reason,  a  use  of  the  estate  might  be 
declared  by  parol.  But  where  a  deed  was  requisite  to  the  passing  of 
the  estate  itself,  there  a  deed  was  also  necessary  for  the  declaration 
of  the  uses.  Thus,  for  example,  a  man  could  not  covenant  to  stand 
seised  to  use  without  a  deed  (k). 

§  972.  However  this  may  have  been,  the  Statute  of  Frauds  of  29 
Charles  II.,  ch.  8,  s.  7,  requires  all  declarations  or  creations  of  trusts 
or  confidences  of  any  lands,  tenements,  and  hereditaments  to  be 
manifested  and  proved  by  some  writing,  signed  by  the  party  entitled 
to  declare  such  trusts,  or  by  his  last  will  in  writing ;  and  section  8  of  the 
statute  excepts  trusts  "of  lands  or  tenements"  arising,  resulting, 
transferred,  or  extinguished  by  operation  of  law,  which  obviously 
excludes  declarations  of  trusts  of  personalty  which  may  be  declared 
verbally  (I).  Neither  does  it  prescribe  any  pariacular  form  or  solemnity 
in  writing;  nor  that  the  writing  should  be  under  seal.  Hence,  any 
writing  sufficiently  evincive  of  a  trust,  as  a  letter,  or  other  writing  of 
a  trustee,  stating  the  trust,  or  any  language  in  writing,  .clearly  expres- 
sive of  a  trust,  intended  by  the  party,  although  in  the  form  of  a  desire 
or  a  request,  or  a  recommendation,  will  create  a  trust  by 
implication  (m).  And  where  a  trust  is  created  for  the  benefit  of  a 
third  person,  although  without  his  knowledge,  he  may  afterwards 
affirm  it,  and  enforce  the  execution  of  it  in  his  own  favour,  at 
least,  if  it  has  not,  in  the  intermediate  time,  been  revoked  by  the 
person  who  has  created  the  trust  {n}. 

§  978.  Uses  or  trusts,  to  be  raised  by  any  covenant  or  agreement 
of  a  party  in  equity,  must  be  founded  upon  some  meritorious  or 
some  valuable  consideration;  for  courts  of  equity  will  not  enforce 
a  mere  gratuitous  gift  (donum  gratuitum),  or  a  mere  moral  obligation.. 
Hence  it  is,  that,  if  there  be  a  mere  voluntary  executory  trust  created, 
courts  of  equity  will  not  enforce  it  (o).  And,  upon  the  same  ground, 
if  two  persons  for  a  valuable  consideration,   as  between  themselves,. 

(k)  Gilb.  Uaes,  270,  271. 

(I)  Benbow  v.  Townsend,  1  M.  &  K.  506;  McFadden  v.  Jenkins,  1  Phil.  183; 
Cochrane  v.  Moore,  25  Q.  B.  D.  57. 

(to)  Vandenberg  v.  Palmer,  4  K.  &  J.  204.  See  Kekewich  v.  Manning,  1  De  G. 
M.  &  G.  176. 

(w)  Acton  v.  Woodgate,  2  Myl.  &  Z.  492. 

(o)  Jefferys  v.  Jejferys,  Cr.  &  Ph.  153. 


398  EQUITY     JURISPRUDENCE.  [CH.    XXIII. 

covenant  to  do  some  act  for  the  benefit  of  a  third  person,  who  is  a 
mere  stranger  to  the  consideration,  he  cannot  enforce  the  covenant 
against  the  two,  although  each  one  might  enforce  it  against  the 
other  (p).  But  it  is  otherwise  in  cases  where  the  use  or  trust  is 
already  created  and  vested,  or  otherwise  fixed  in  the  cestui  que  trust ; 
or  where  it  is  raised  by  a  last  vrill  and  testament  (q).  Thus,  for 
example,  if  A.  should  direct  his  debtor  to  hold  the  debt  in  trust  for 
B.,  and  the  debtor  should  accept  the  trust,  and  communicate  the  fact 
to  both  A.  and  B.,  the  trust,  although  voluntary,  would  be  enforced 
in  favour  of  B.,  and  binding  on  A. ;  for  nothing  remains  to  be  done 
to  fix  the  trust.  So,  if  A.  had  declared  himself  trustee  for  B.  of  the 
same  debt,  the  saxne  doctrine  would  apply  (r). 

§  974.  Trusts  in  real  property,  which  are  exclusively  cognizable 
in  equity,  are  now  in  many  respects  governed  by  the  same  rules  as 
the  like  estates  at  law,  and  afford  a  striking  illustration  of  the  maxim 
xquitas  sequitur  legem.  Thus,  for  example,  they  are  descendible, 
devisable,  and  alienable;  and  heirs,  devisees,  and  alienees  may,  and 
generally  do,  take  therein  the  same  interests  in  point  of  construction 
and  duration,  and  they  are  affected  by  the  same  incidents,  properties, 
and  consequences,  as  would  under  like  circumstances  apply  to  similar 
estates  at  law  (s).  We  say  generally,  because  there  are  exceptions 
to  the  doctrine  above  stated.  Thus,  for  example,  the  construction  put 
upon  executory  trusts  arising  under  agreements  and  wills,  sometimes 
differs,  in  equity,  from  that  in  regard  to  executed  trusts.  And  trusiis 
in  terms  for  years  and  personalty  will  be  often  recognized  and 
enforced  in  equity,  which  would  be  wholly  disregarded  at  law  (t). 

§  975.  In  regard  to  trusts,  the  analogy  to  estates  at  the  common 
law  is  not  only  followed,  as  to  the  rights  and  interests  of  the  cestui 
que  trust,  but  also  as  to  the  remedies  to  enforce,  preserve,  and 
extinguish  those  rights  and  interests.  Thus,  for  instance,  there  cannot, 
strictly  speaking,  be  a  disseisin,  abatement,  or  intrusion,  as  to  a  trust 
estate.     But,  nevertheless,  there  may  be  such  an  adverse  claim  of  a 

(p)  Sutton  V.  Viscount  Chetwynd,  3  Mer.  249;  Davenport  v.  Bishop,  2  Y.  &  0. 
Ch.  451 ;  1  Ph.  698. 

(g)  In  re  Gurteis'  Trusts,  L.  E.  14  Eq.  217. 

(r)  McFadden  v.  Jenkins,  1  Phil.  152.  See  also  Stapleton  v.  Stapleton,  14 
Sim.  186. 

(«)  2  Black.  Comm.  337.  The  most  remarkable  deviation,  in  executed  trusts,  from 
the  rules  in  relation  to  legal  estates,  is  that  a  man  may  be  tenant  by  the  curtesy  of 
a  trust  estate  of  his  wife;  but  a  woman  was  not,  till  the  Dower  Act,  entitled  to  dower 
in  a  trust  estate  of  her  husband.  Lord  Eedesdale,  in  D'Arcy  v.  Blake,  2  Sch.  &  Lefr. 
387,  has  given  the  best  account  of  the  origin  of  this  anomaly. 

(f)  Austen  v.  Taylor,  Ambler  376 ;  s.c.  1  Eden  361 ;  Massenburgh  v.  Ash,  1  Vern. 
234,  304.  Hence,  in  executory  trusts  created  by  a  will,  the  rule  in  Shelley's  Case, 
1  Co.  99  (aa  it  is  called),  will  not  be  strictly  followed  in  equity;  but  the  same  construc- 
tion will  be  had,  as  governs  in  regard  to  marriage  articles,  if  the  same  intent  's 
apparent  on  the  face  of  the  will.  There  is,  however,  a  distinction  between  marriage 
articles  and  executory  trusts  arising  under  wills,  as  to  the  inference  of  the  intention 
of  the  parties.    It  is  stated  post,  §  984. 


§  974—976.]  TRUSTS.  399 

trust  estate  by  an  adverse  claimant,  taking  the  rents  and  profits,  as 
may  amount  to  an  equitable  ouster  of  the  rightful  claimant;  and  such 
as,  if  continued  twelve  years,  would,  by  analogy  to  legal  remedies, 
bar  any  assertion  of  his  right  in  equity  (u).  We  have  already  had 
occasion  to  consider  this  subject  in  reference  to  statutes  of  limitations 
generally  (aj).  And  it  may  be  here  added,  that  bars,  to  relief  in  equity 
from  lapse  of  time  are  also  entertained  in  courts  of  equity, 
independently  of  the  express  provisions  of  any  statute  of  Hmita- 
tions  {y).  By  the  Judicature  Act,  1873,  sect.  25,  sub-sect.  2,  it  is 
provided  that  no  claim  of  a  cestui  que  trust  against  his  trustees  for 
any  property  held  on  an  express  trust,  or  in  respect  of  any  breach  of 
such  trust,  shall  be  held  to  be  barred  by  any  statute  of  limitations. 
But  a  trustee  may  also  claim  the  benefit  of  the  Statute  of  Limitations 
except  where  the  claim  is  founded  upon  fraud  or  fraudulent  breach  of 
trust  to  which  he  is  party  or  privy,  or  is  to  recover  trust  property  or 
the  proceeds  thereof  still  retained  by  the  trustee  and  converted  to  his 
use  («). 

§  976.  It  is  a  general  rule  in  courts  of  equity,  that  wherever  a 
trust  exists,  either  by  the  declaration  of  the  party,  or  by  intendment 
or  implication  of  law,  and  the  party  creating  the  trust  has  not 
appointed  any  trustee  to  execute  it,  equity  will  follow  the  legal 
estate,  and  decree  the  person,  in  whom  it  is  vested  (not  being  a  bond 
fide  purchaser  for  a  valuable  consideration  without  notice,  or  other- 
wise entitled  to  protection),  to  execute  the  trust,  or  to  transfer  the 
property:  For,  it  is  a  rule  in  equity,  which  admits  of  no  exception, 
that  a  court  of  equity  never  wants  a  trustee  (a).  This  is  often  applied 
to  the  cases  of  powers  of  sale  of  lands,  given  by  will  for  the  payment 
of  debts  and  other  purposes  which  are  in  the  nature  of  a  trust.  In 
such  cases,  if  the  power  becomes  extinct  at  law,  either  from  no  person 
being  appointed  in  the  will  to  execute  it,  or  from  the  party  designated, 
dying  before  the  execution  of  it,  courts  of  equity  will  decree  the 
execution  of  such  trust,  and  compel  the  party  in  possession,  as  heir  or 
devisee  of  the  legal  estate  in  the  lands,  to  perform  it  (b).  And, 
generally,  it  may  be  stated,  that  where  the  property  has  been 
bequeathed  in  trust,  without  the  appointment  of  a  trustee,  if  it  is 
personal  estate,  the  personal  representative  is  deemed  the  trustee ;  and 
if  real  estate,  the  heir  or  devisee  is  deemed  the  trustee,  and  is  bound 
to  its  due  execution  (c).     And  now,  by  the  Conveyancing  Act,  1881, 

(u)  Cholmondeley  v.  Clinton,  2  Jac.  &  Walk.  1;  ihii.  191,  note, 
(cc)  Ante,  §§  55,  529,  771;  -post,  §§  1520,  1521.  (y)  Ante,  §  65. 

(z)  Trustee  Act,  1888,  sect.  8.  In  re  Somerset,  Somerset  v.  Earl  Poullett,  [1894] 
1  Ch.  231 ;  How  v.  Earl  WinteHon,  [1896]  2  Ch.  626. 

(a)  Co.  Litt.  290  b.  Butler's  note  (1);  Co.  Litt.  113  n,  Butler's  note  (51);  ante, 
§  98;  Dodkin  v.  Brunt,  L.  E.  6  Bq.  580;  In  re  Birchall,  Birchall  v.  Ashton,  40  Ch. 
D.  436. 

(b)  Co.  Litt.  113  a,  Butler's  note  (1);  ibid.  290,  Butler's  note  (1). 

(c)  1  Mad.  Pr.  Ch.  365;  Dilrow  v.  Bone,  3  Giff.  538. 


400  EQUITY     JURISPRUDENCE.  [CH.    XXIII. 

sect.  30,  it  is  enacted  that  where  an  estate  or  interest  of  inheritance,  or 
limited  to  the  heir  as  special  occupant,  in  any  tenements  or  heredita- 
ments, corporeal  or  incorporeal,  invested-  on  any  trust,  or  by  way  of 
mortgage  in  any  person  solely,  the  same  shall  on  his  death,  notwith- 
standing any  testamentary  disposition,  devolve  to  and  become  vested  in 
his  personal  representatives  or  representative  from  time  to  time  in  like 
manner  as  if  the  sa,m6  were  a  chattel  real  vesting  in  them  or  him ;  and, 
accordingly,  all  the  like  powers  for  one  only  of  several  joint  personal 
representatives,  as '  well  as  for  a  single  personal  representative,  and 
for  all  the  personal  representatives  together,  to  dispose  of  and  other- 
wise deal  with  the  same,  shall  belong  to  the  deceased's  personal 
representatives  or  representative  from  time  to  time,  with  aU  the  like 
incidents,  but  subject  to  all  the  like  rights,  equities,  and  obligations, 
as  if  the  same  were  a  chattel  real  vesting  in  them  or  him ;  and  for 
the  purposes  of  this  section,  the  personal  representatives,  for  the  time 
being  of  the  deceased,  -shall  be  deemed  in  law  his  heirs  and  assigns 
within  the  meaning  of  all  trujsts  and  powers. 

§  977.  The  power  of  a  trustee  over  the  legal  estate  or  property 
vested  in  him,  properly  speaking,  exists  only  for  the  benefit  of  the 
cestui  que  trust.  It  is  true,  that  he  may  as  legal  owner  do  acts  to  the 
prejudice  of  the  rights  of  the  cestui  que  trust,  and  he  may  even 
dispose  of  the  estate  or  property,  so  as  to  bar  the  interests  of  the 
latter  therein;  as  by  a  sale  to  a  bond  fide  purchaser,  for  a  valuable 
consideration  without  notice  of  the  trust.  But  when  the  alienation  is 
purely  voluntary,  or  where  the  estate  devolves  upon  the ,  personal 
representative  or  personal  i-epresentatives  of  the  trustee,  or  where  the 
alienee  has  notice  of  the  trust,  the  trust  attaches  to  the  estate,  in  the 
same  manner  as  it  did  in  the  hands  of  the  trustee  himself,  and  it  will 
•be  enforced  accordingly  in  equity  (d).  And  although  the  trustee  may, 
by  a  mortgage,  or  other  specific  lien,  without  notice  of  the  trust,  bind 
the  estate  or  the  property;  yet  it  is  not  bound  by  any  judgments,  or 
any  other  claims  of  creditors  against  him  (e).  How  i&v  acts  of 
forfeiture  by  the  trustee  ought  to  be  allowed  to  bind  the  estate  of  the 
cestui  que  trust,  has  been  a  matter  of  considerable  diversity  of 
judgment,  but  by  the  Forfeiture  Act,  1870  (33  &  34  Vict.  c.  23), 
forfeiture  for  treason  and  felony  has  been  abolished. 

§  978.  What  powers  may  be  properly  exercised  over  trust  property, 
by  a  trustee,  depends  upon  the  nature  of  the  trust,  and  sometimes 
upon  the  character  and  situation  of  the  cestui  que  trust.  "Where  the 
cestui  que  trust  is  of  age,  or  sui  juris,  the  trustee  has  no  right  (unless 
express  power  is  given)  to  change  the  nature  of  the  estate,  as  by 
converting  land  into  money,  or  money  into  land,  so  as  to  bind  the 
cestui  que  trust.  But  where  the  ce.stui  que  trust  is  not  of  age,  or  sui 
juris,  it  is  frequently  necessary  to  his  interests  that  the  trustee  should 

(d)  Pye  V.  George,  1  P.  Will.  129;  Saunders  v.  Dehew,  2  Vern.  271. 

(e)  Farr  v.  Newman,  4  T.  E.  621. 


§  977—981.]  TRUSTS.  401 

possess  the  power;  and  in  case  his  interests  require  the  conversion,  the 
acts  of  the  trustee,  bond  fide  done  for  such  a  purpose,  seem  to  be 
justifiable. 

§  979.  It  has  also  been  laid  down,  as  a  general  rule,  that  the 
cestui  que  trust  may  call  upon  the  trustee  for  a  conveyance  to  execute 
the  trust  (/),  and  that,  what  the  trustee  may  be  compelled  to  do  by  a 
suit,  he  may  voluntarily  do  without  a  suit  (g).  But  the  latter  branch 
of  the  rule  admits,  if  it  does  not  require,  many  qualifications  in  its 
practical  application;  for,  otherwise,  a  trustee  may  incur  many  perils, 
the  true  nature  and  extent  of  which  may  not  be  ascertainable,  until- 
there  has  been  a  positive  decision  upon  his  acts  by  a  court,  of  equity, 
or  a  positive  declaration  by  such  a  court,  of  the  acts  which  he  is  at 
liberty  to  do  (h). 

§  980.  Passing  from  these  more  general  considerations  in  regard 
to  Trusts,  and  the  jurisdiction  exercised  in  equity  over  them,  we  may 
next  proceed  to  examine  them  under  the  heads,  into  which  they  are 
usually  divided,  of  Express  Trusts,  and  Implied  Trusts,  the  latter 
comprehending  all  those  trusts,  which  are  called  constructive  and 
resulting  trusts.  Express  trusts  are  those  which  are  created  by  the 
direct  and  positive  acts  of  the  parties  by  some  writing,  or  deed,  or 
will.  Not  that,  in  those  cases,  the  language  of  the  iastrument  need 
point  out  the  nature,  character,  and  limitations  of  the  trust  in  direct 
terms  ipsissiv^is  verbis ;  for  it  is  sufiicient  that  the  intention  to  create 
it  can  be  fairly  collected  upon  the  face  of  the  instrument  from  the 
terms  used;  and  the  trust  can  be  drawn,  as  it  were,  ex  visceribus 
verboruwr.  Implied  trusts  are  those  which  are  deduoible  from  the 
nature  of  the  transaction,  as  a  matter  of  clear  intention,  although  not 
found  in  the  words  of  the  parties ;  or  which  are  superinduced  upon 
the  transaction  by  operation  of  law,  as  matter  of  equity,  independent 
of  the  particular  intention  of  the  parties. 

§  981.  The  most  usual  cases  of  express  trusts  are  found  in  pre- 
liminary sealed  agreements,  such  as  marriage  articles,  or  articles  for 
the  purchase  of  lands;  or  in  formal  conveyances,  such  as  marriage 
settlements,  terms  for  years,  mortgages,  and  other  conveyances  and 
assignments  for  the  payment  of  debts,  or  for  raising  portions,  or  for 
other  special  purposes;  or  in  last  wills  and  testaments,  in  a  variety 
of  bequests  and  devises,  involving  fiduciary  interests  for  private 
benefit  or  public  charity.  Indeed,  many  of  these  instruments  (as  we 
shall  abundantly  see)  will  also  be  found  to  contain  implied,  constructive 
and  resulting  trusts;  and  the  separate  consideration  of  them  through- 
out would,  therefore,  be  scarcely  attainable,  without  frequent 
repetitions  of  the  same  matters  as  well  as  of  the  same  illustrations. 

(/)  Willis  V.  Hiscox,  1  M.  &  Cr.  197 ;  Buttanshaw  v.  Martin,  Johns.  89. 
(g)  See  Jervoise  v.  Duke  of  Northumberland,  1  Jac.  &  Walk.  559,  571. 
(h)  Moody  v.  Walters,  16  Ves.  302,  303,  807  to  314. 
E.J.  26 


402  EQUITY     JURISPRUDENCE.  [CH.    XXIII. 

§  982.  In  regard  to  each  of  these  subjects,  there  are  a  great  many 
nice  and  refined  doctrines  and  distinctions,  which  have  been  ingrafted 
into  equity  jurisprudence,  the  full  examination  of  which  belongs  rather 
to  single  treatises  upon  each  particular  topic,  than  to  a  general  survey 
of  the  system,  such  as  is  embraced  in  the  design  of  the  present 
Commentaries.  It  may  be  added,  that  many  of  these  doctrines  and 
distinctions  are  the  creations  of  courts  of  equity,  acting  upon  the 
enlarged  principles  of  social  justice  ex  sequo  et  bono,  rather  than 
express  trusts  created  by  the  acts  of  the  parties,  as  an  exposition  and 
execution  of  their  declared  intentions.  So  that  they  may  properly  be 
said  to  fall  within  the  scope  of  implied  or  constructive  trusts.  In  our 
subsequent  remarks  upon  all  of  these  topics  (which  will  necessarily 
be  brief)  no  attempt  will  be  made  nicely  to  distinguish  between  those 
trusts  which  are  express  and  those  which  are  implied.  Both  will 
occasionally  be  blended,  unless  where  the  particular  nature  of  the 
trusts  calls  for  some  discrimination  between  them. 


§    982,    983.  J  MARRIAGE     SETTLEMENTS.  403 


CHAPTER    XXIV. 


MARRIAGE    SETTLEMENTS. 


§  988.  And,  in  the  first  place,  in  regard  to  Marriage  Settlements. 
Where  an  instrument,  designed  as  a  marriage  settlement,  is  final  in 
its  character,  and  the  nature  and  extent  of  the  trust  estates  created 
thereby  are  clearly  ascertained  and  accurately  defined,  so  that  nothing 
further  remains  to  be  done  according  to  the  intention  of  the  parties, 
there  the  trusts  will  be  treated  as  executed  trusts,  and  courts  of  equity 
will  construe  them  in  the  same  way  as  legal  estates  of  the  like  nature 
would  be  construed  at  law  upon  the  same  language.  Thus,  if  the 
language  of  the  instrument  would  give  a  fee-simple  to  the  parents  in  a 
legal  estate,  they  will  be  held  entitled  to  a  fee-simple  in  the  trust 
estate  (a-).  But  where  no  marriage  settlement  has  actually  been 
executed,  but  mere  marriage  articles  only  for  a  settlement,  there,  courts 
of  equity,  when  called  upon  to  execute  them,  will  indulge  in  a  wider 
latitude  of  interpretation,  and  will  construe  the  words,  according  to 
the  presumed  intention  of  the  parties,  most  beneficially  for  the  issue 
of  the  marriage.  In  executing  such  articles  they  will  put  it  out  of  the 
power  of  the  parents  to  defeat  the  issue,  by  requiring  that  the  limita- 
tions in  the  marriage  settlement  should  be  what  are  called  limitations 
in  strict  settlement;  that  is  to  say,  instead  of  giving  the  parents  a 
fee  tail,  the  limitations  will  be  made  to  them  for  life,  with  remainders 
to  the  first  and  other  sons  in  succession,  according  to  seniority,  in 
the  fee  tail;  and  if  the  articles  are  applicable  to  daughters,  with 
remainder  to  the  daughters  as  tenants  in  common  in  fee-tail,  with 
cross  remainders  (b)  between  them  in  case  of  the  death  of  any  one  of 
the  daughters  without  issue,  with  remainders  over  (c).  And  in  cases 
of  executory  trusts  arising  under  wills,  a  similar  favourable  construction 
will  be  made  in  favour  of  the  issue  in  carrying  them  into  effect,  if  the 
.  court  can  clearly  see  from  the  terms  of  the  will  that  the  intention  of 
the  testator  is  to  protect  the  interests  of  the  issue  in  the  same  way  [d). 

(a)  Jervoise  v.  Duke  of  Northumberland,  1  Jac.  &  Walk.  559;  Cooper  v.  Kynoch, 
L.  E.  7  Ch.  398.  Marriage  settlements  are  not  affected  by  the  Married  Women's  Pro- 
perty Act,  1882,  for  by  6.  19  of  that  Act  it  is  provided  that  nothing  in  this  Act  con- 
tained shall  interfere  with  or  affect  any  settlement  or  agreement  for  a  settlement 
made,  or  to  be  made,  whether  before  or  after  marriage,  respecting  the  property  of 
any  married  woman. 

(6)  Cross  remainders  are  never  implied  in  a  deed.    Doe  v.  Dorvell,  5  T.  E.  518. 

(c)  Rochfort  V.  Fitzmaurice,  4  Dr.  &  War.  1. 

(d)  Lord  Glenorchy  v.  Bosville,  Cas.  t.  Talb.  3. 


404  EQUITY    JURISPRUDENCE.  [CH.    XXIV. 

§  984.  There  is,  however,  a  distinction  between  executory  trusts 
created  under  marriage  articles,  and  those  created  under  wills,  which 
has  been  adverted  to  in  some  of  the  reported  cases.  In  cases  of 
marriage  articles,  courts  of  equity  will,  from  the  nature  of  the  instru- 
ment, presume  it  to  be  intended  for  the  protectdon  and  support  of  the 
interests  of  the  issue  of  the  marriage,  and  will,  therefore,  direct  the 
articles  to  be  executed  in  strict  settlement,  unless  the  contrary  purpose 
clearly  appear.  For,  otherwise,  it  would  be  in  the  power  of  the 
father  to  defeat  the  purpose  of  protecting  and  supporting  such  interests, 
and  to  appropriate  the  estate  to  himself.  But,  in  executory  trusts 
under  will,  all  the  parties  take  from  the  mere  bounty  of  the  testator; 
and  there  is  no  presumption  that  the  testator  means  one  quantity  of 
interest  rather  than  another,  an  estate  for  life  in  the  parent  rather  than 
an  estate  tail;  for  he  has  a  right  arbitrarily  to  give  what  estate  he 
thinks  fit,  to  the  parent,  or  to  the  issue.  If,  therefore,  the  words  of 
marriage  articles  limit  an  estate  for  life  to  the  father,  with  remainder 
to  the  heirs  of  his  body,  courts  of  equity  will  decree  a  strict  settlement, 
in  conformity  to  the  presumed  intention  of  the  parties.  If  the  same, 
words  should  occur  in  executory  trusts  created  by  a  will,  there  is  no 
like  presumption  of  intention,  but  in  each  case  the  matter  resolves 
itself  into  a  question  of  construction  whether  the  instrument  defines 
precisely  the  interests  of  the  parties,  or  indicates  the  objects  leaving 
the  court  to  define  their  interests  (e). 

§  985.  In  furtherance  of  the  same  beneficial  purpose  in  favour  of 
issue,  courts  of  equity  will  construe  an  instrument  which  might,  under 
one  aspect,  be  treated  as  susceptible  of  a  complete  operation  at  law, 
to  contain  merely  executory  marriage  articles,  if  such  an  intent  is 
apparent  on  the  face  of  it;  for  this  construction  may  be  most  impor- 
tant to  the  rights  and  interests  of  the  issue  (/).  So  an  instrument, 
as  to  one  part  of  the  property  comprised  in  it,  may  be  construed  to  be 
a  final  legal  settlement;  and  as  to  other  property  merely  to  be 
executory  articles  {g). 

§  986.  There  is  also  a  distinction  in  courts  of  equity  as  to  the 
parties,  in  whose  favour  the  provisions  of  marriage  articles  will  be 
specifically  executed  or  not  (h).  The  parties  seeking  a  specific  execu- 
tion of  such  articles  may  be  those  who  are  strictly  within  the  reach 
and  influence  of  the  consideration  of  the  marriage,  or  claiming  through 
them;  such  as  the  wife  and  issue,  and  those  claiming  under  them; 

(e)  Jenoise  v.  Duke  of  Northumberland,  1  J.  &  W.  559;  Rochfort  v.  Fitzmaurice, 

2  Dr.  &  War.  1 ;  Egerton  v.  Earl  Brownlow,  4  H.  L.  C.  1 ;  Sackville-West  v.  Viscount 
Holmesdale,  L.  E.  4  H.  L.  544. 

(/)  Trevor  v.  Trevor,  1  P.  Will.  622;  5  Bro.  P.  C.  122. 

ig)  Papillon  v.  Voice,  2  P.  Wms.  471;  Duke  of  Newcastle  v    Countess  of  Lincoln, 

3  Ves.  387 ;  12  Ves.  217. 

(h)  Articles  were  enforced  in  favour  of  husband,  though  he  had  broken  the  contract 
on  his  part,  there  being  part  performance  by  the  marriage,  and  the  covenants  being 
independent.     Jeston  v.  Key,  L.  R.  6  Ch.  610. 


§    984 989.]  MARRIAGE     SETTLEMENTS.  405 

or  tihey  may  be  mere  volunteers,  for  whom  the  settlor  is  under  no 
natural  or  moral  obligation  to  provide,  and  yet  who  are  included 
within  the  scope  of  the  provisions  in  the  marriage  articles;  such  as 
his  distant  heirs  or  relatives,  or  mere  strangers.  Now,  the  distinction 
is,  that  marriage  articles  will  be  specifically  executed  upon  the 
application  of  any  person  within  the  scope  of  the  consideration  of  the 
marriage,  or  claiming  under  such  person;  but  not  generally  upon  the 
application  of  mere  volunteers  (j).  But  where  the  action  is  brought  by 
persons  who  are  within  the  scope  of  the  marriage  consideration,  or 
claiming  under  them,  there,  courts  of  equity  will  decree  a  specific 
execution  throughout,  as  well  in  favour  of  the  mere  volunteers,  as  of 
the  plaintiSs  in  the  suit.  So  that,  indirectly,  mere  volunteers  may 
obtain  the  full  benefit  of  the  articles,  in  the  cases  where  they  could 
not  directly  insist  upon  such  rights.  The  ground  of  this  peculiarity 
is,  that  when  courts  of  equity  execute  such  articles  at  all  they  execute 
them  in  toto  and  not  partially  (k).  They  can  rectify  instruments,  but 
cannot  rectify  contracts  (I). 

§  987.  It  has  been  already  stated,  that,  generally  marriage  articles 
will  not  be  decreed  in  favour  of  mere  volunteers  (m).  But  an  excep- 
tion is  allowed  in  the  case  of  a  widow  who  may  stipulate  for  a  benefit 
in  favour  of  her  children  by  a  former  marriage,  and  these  children  may 
enforce  that  provision  {n).  This  decision  is  quite  anomalous,  and 
although  too  long  established  to  be  examined,  or  overruled,  is  inapplic- 
able to  the  case  of  the  children  of  a  widower  (o). 

§  988.  In  regard  to  terms  for  years  and  personal  chattels,  it  may 
be  observed,  that  they  are  capable  of  being  limited  in  equity  in  strict 
settlement,  so  as  to  be  transmissible,  like  heirlooms.  The  statute 
de  donis  only  extends  to  real  estates  of  inheritance.  But,  neverthe- 
less, estates  pour  autre  vie,  and  terms  of  years,  and  personal  chattels 
are  now  held  to  be  susceptible  of  being  strictly  settled,  and  rendered 
inalienable  almost  for  as  long  a  time  as  if  they  were  strictly 
entailable   (p). 

§  989.  In  regard  to  estates  pour  amtre  vie,  they  may,  at  law,  be 
devised  or  limited  in  strict  settlement  by  way  of  remainder,  like 
estates  of  inheritance;  and  the  remainderman  will  take  as  special 
occupant  (g).    But  those  who  have  an  interest  therein  in  the  nature  of 

(t)  §  §  706a,  793a,  973. 

\h.)  Davenport  v.  Bishop,  2  Y.  &  C.  Ch.  451;  1  Ph.  698. 

(0  Mackenzie  v.  Goulson,  L.  E.  8  Eq.  368,  375. 

(m)  Ante,  §  §  95,  169,  706a,  793a;  West  v.  Erissey,  2  P.  Will.  349;  Kettleby  v. 
Atwood,  1  Vern.  298,  471. 

(n)  Newstead  v.  Searles,  1  Atk.  265;  Gale  v.  Oale,  6  Ch.  D.  144. 

(o)  In  re  Cameron  and  Wells,  37  Ch.  D.  30. 

(p)  Ware  v.  Polhill,  11  Ves.  257;  Campbell  v.  Sanders,  1  Sch.  &  Lefr,  281; 
Christie  v.  Gosling,  L.  E.  1  H.  L.  279;  Countess  of  Harrington  v.  Earl  of  Harring- 
ton, L.  E.  5  H.  L.  87. 

(g)  Low  V.  Burron,  3  P.  Will.  262,  and  Mr.  Cox's  notes;  Fearne  on  Conting,  Bern., 
by  Butler,  pp.  493  to  499  (7th  edit.). 


406  EQUITY    JURISPRUDENCE.  [CH.    XXIV. 

estates  tail,  may  bar  their  issue,  and  all  remainders  over,  by  the 
alienation  of  the  estate  pour  autre  vie,  without  the  formality  of 
enrolling  the  assurance  within  six  months  after  execution  (r). 

§  990.  In  regard  to  estates  in  terms  of  years  and  personal  chattels, 
the  manner  of  settling  them  is  different;  for  in  them  no  remainder 
can  at  law  be  limited.  But  they  may  be  entailed  at  law  by  an 
executory  devise,  or  by  a  deed  of  trust  in  equity,  as  effectually  as 
estates  of  inheritance,  and  with  the  same  limitations  as  to  per- 
petuity (s).  However,  the  vesting  of  an  interest  in  a  term  for  years 
or  in  chattels  in  any  person,  equivalent  to  a  tenancy  in  tail,  confers 
upon  such  person  the  absolute  property  in  such  term  or  chattels,  and 
bars  the  issue,  and  all  subsequent  limitations,  as  effectually  as  a  deed 
enrolled  would  do  in  cases  of  pure  entails,  or  as  an  alienation  would 
do  in  the  case  of  conditional  fees,  and  estates  pour  autre  vie  (t).  If, 
in  the  case  of  a  term  of  years,  or  of  chattels,  the  limitations  over  are 
too  remote,  the  whole  property  vests  in  the  first  taker  (m). 

§  991.  In  marriage  settlements  it  is  that  we  principally  find  limita- 
tions made  to  trustees  to  preserve  contingent  remainders.  Trusts  of 
this  sort  arose  out  of  the  doctrine  in  Chudleigh's  Case  (w),  and 
Archer's  Case  (x),  although  it  is  said,  that  they  were  not  put  in 
practice  until  the  time  of  the  Usurpation;  they  represented  "  the 
most  common  way  of  conveyancing  to  prevent  the  disappointing  con- 
tingent estates  "  so  early  as  1662  (y).  The  object  of  these  limitations 
was  to  prevent  the  destruction  of  contingent  remainders  by  the  tenant 
for  life,  or  other  party,  before  the  rennainder  comes  m  esse,  and  is 
vested  in  the  remainderman.  The  great  dispute  in  Chudleigh's  Case 
was  concerning  the  power  of  feoffees  to  uses,  created  since  the  Statute 
of  Uses  of  27  Henry  VIII.  ch.  10,  to  destroy  contingent  uses  by 
fine  or  feoffment  before  the  contingent  uses  came  into  being.  It 
was  determined,  that  the  feoffees  possessed  such  a  power;  and  also, 
that  they  had  in  them  a  possibility  of  seisin  to  serve  such  contingent 
uses  when  they  come  into  being,  and  a  scintilla  juris,  or  power  of 
entry,  in  case  their  estate  was  devested,  to  restore  that  possibility. 
At  this  time  it  had  not  been  decided  that  the  destruction  of  the 
particular  estate  for  life,  by  the  feoffment  or  other  conveyance  of  the 
cestui  que  use  for  life,  before  the  contingent  remainder  became  vested, 

(r)  Co.  Litt.  20  a,  note  (5) ;  Pearne  on  Conting.  Rem.,  by  Butler,  pp.  493  to  499 
(7th  edit.) ;  Blake  v.  Luxton,  Q.  Coop.  178. 

(s)  Co.  Litt.  18  b,  Hargrave's  note  (7);  Co.  Litt.  20  o,  Hargrave's  note  (5);  Co. 
94,  95;  Fearne  on  Conting.  Rem.,  by  Butler,  402,  403  (7th  edit.);  1  Mad.  Pr.  Ch.  367. 

(t)  Murthwaite  v.  Jenkinson,  2  B.  &  C.  357;  Ward  v.  Bevill,  1  Y.  &  J.  512; 
Countess  of  Harrington  v.  Earl  of  Harrington,  L.  R.  5  H.  L.  87. 

(u)  Co.  Litt.  20  a,  Hargrave's  note  (5);  1  Mad.  Pr.  Ch.  367. 

iw)  1  Co.  120. 

(x)  1  Co.  66. 

(y)  Loyd  v.  Brooking,  1  Vent,  at  p.  189  ;  Fearne  on  Conting.  Rem.,  by  Butler  325 
326  (7th  oditi 


§    990 — 994.]  MARRIAGE    SETTLEMENTS.  407 

was  a  destruction  of  the  contingent  remainder.  But  that  point  was 
settled  in  the  affirmative  a  few  years  afterwards  in  Archer's  Case  (2). 

§  992.  There  being  then  at  law,  under  these  determinations,  a 
power  in  the  general  feoffees  to  uses,  either  to  preserve  or  to  destroy 
these  contingent  uses  ad  libitum,  and  also  a  power  in  the  cestui  que 
use  for  life  also  to  destroy  them,  there  arose  a  necessity  to  remedy 
these  defects.  And  it  was  done  by  limiting  a  vested  estate  to  named 
trustees  and  their  heirs,  during  the  life  of  the  person  entitled  to  the 
antecedent  life  estate,  upon  an  express  trust  to  preserve  such  contin- 
gent remainders.  So  that  thereby  the  whole  inheritance  might  come 
entire  to  the  cestui  que  use  in  contingency,  in  like  manner  as  trustees 
to  uses  ought  to  have  preserved  them  before  the  Statute  of  Uses, 
when  they  were  but  trusts  to  be  executed  by  courts  of  equity  (a). 

§  993.  It  was  at  first  a  question,  whether  upon  such  a.  limitation 
to  trustees,  after  a  prior  limitation  for  life,  they  took  any  estate  in 
the  land,  or  only  a  right  of  entry  on  the  forfeiture  or  surrender  of  the 
first  tenant  for  life,  by  reason  that  the  limitation,  being  only  during 
his  life,  could  not  commence  or  take  effect  after  his  death.  But  it 
was  settled,  that  the  trustees  had  the  immediate  freehold  in  them,  as 
an  estate  pour  autre  vie ;  and  at  law  they  could  maintain  and  defend 
any  action  respecting  the  freehold  (b).  Upon  this  ground  it  is  that 
such  trustees  are  entitled  to  an  injunction  in  equity  to  prevent  waste 
in  the  lands,  and  in  mines,  and  timber  thereon ;  as  these  constitute  a 
valuable,  and  sometimes  the  most  valuable,  portion  of  the  inheritance, 
which  the  trustees  are  bound  to  preserve  (c). 

§  994.  On  the  other  hand,  courts  of  equity  would  treat,  as  a  distinct 
breach  of  trust,  every  act  of  such  trustees  inconsistent  with  their 
proper  duty,  and  will  give  relief  to  the  parties  injured  by  such  mis- 
conduct (d).  If,  therefore,  they  should,  in  violation  of  their  trust,  join 
in  any  conveyance  to  destroy  the  contingent  uses  or  remainders,  they 
were  held  responsible  therefor.  If  the  persons,  taking  under  such 
conveyance,  were  volunteers,  or  had  notice  of  the  trust,  they  were 
held  liable  to  the  same  trusts,  and  decreed  to  restore  the  estate.  If 
they  were  purchasers  without  notice,  then  the  lands  were,  indeed, 
discharged  of  the  trust;  but  the  trustees  themselves  would  be  held 
liable  for  the  breach  in  equity,  and  would  be  decreed  to  purchase 
lands  vdth  their  own  money,  equal  in  value  to  the  lands  sold,  and  to 
hold  them  upon  the  same  trusts  and  limitations  as  they  held  those 
sold  by  them  (e). 

(z)  Archer  Case,  1  Co.  66  ;  Feame  on  Conting.  Rem.,  by  Butler,  290,  and  note  (h) ; 
id.  291  to  301 ;  Chudleigh's  Case,  1  Co.  120.  (a)  Garth  v.  Cotton,  1  Dick.  194. 

(6)  Pearne  on  Conting.  Eem.,  by  Butler,  217,  326  (7th  edit.) ;  Parkhurst  v.  Smith, 
Willea,  327. 

(c)  Garth  v.  Cotton,  1  Dick.  195  to  197,  205,  208,  219;  Stansfield  v.  Habergham, 
10  Ves.  278.  (d)  Garth  v.  Cotton,  1  Dick.  199. 

(e)  Mansel  v.  Mansel,  2  P.  Will.  678;  Biscoe  v.  Perkins,  1  V.  &  B.  485;  Fearne 
on  Conting.  Rem.,  by  Butler,  326,  327  (7tli  edit.). 


408  EQUITY    JURISPRUDENCE.  [CH.    XXIV. 

§  995.  But  it  was  not  every  case,  in  which  a  trustee  had  joined 
in  a  conveyance  to  destroy  contingent  remainders,  that  they  would  be 
deemed  guilty  of  a  breach  of  trust.  In  some  cases  courts  of  equity 
might  even  compel  them  to  join  in  conveyances,  which  would  affect 
or  destroy  such  remainders.  And,  in  such  cases,  it  has  been  supposed 
that  what  they  might  be  compelled  to  do  by  suit,  if  voluntarily  done, 
would  not  be  deemed  a  breach  of  trust.  But  the  cases,  in  which 
courts  of  equity  would  compel  trustees  to  join  in  such  conveyances, 
were  (as  has  been  correctly  said)  rare.  They  had  happened  under 
peculiar  circumstances;  either  of  pressure  to  discharge  incumbrances 
prior  to  the  settlement;  or  in  favour  of  creditors,  where  the  settlement 
was  voluntary ;  or  for  the  advantage  of  persons,  who  were  the  first 
objects  of  the  settlement;  as  for  example,  to  enable  the  first  son  to 
make  a  settlement  upon  an  advantageous  marriage  (/). 

§  996.  There  is  no  question,  however,  that  the  trustees  might  join 
with  the  cestui  que  trust  in  tail  in  any  conveyance  to  bar  the  entail; 
for  that  was  no  breach  of  trust,  but  precisely  what  they  might  be 
compelled,  upon  seeking  instructions  from  the  court,  to  do ;  although 
the  cestui  que  trust  himself  might  have  barred  such  entail  without 
their  joining  in  it.  But  there  was  a  great  distinction  between  cases 
where  courts  of  equity  would  compel  trustees  to  join  in  a  conveyance 
to  destroy  contingent  remainders,  and  cases  where  they  would  decree 
them  to  be  guilty  of  a  breach  of  trust  for  such  an  act  when  it  was 
voluntarily  done  by  them.  Thus,  for  example,  courts  of  equity  would 
not  punish  trustees,  as  guilty  of  a  breach  of  trust,  for  joining  in  a 
conveyance  of  the  cestui  que  trust  in  tail,  to  bar  the  entail.  And 
yet  it  is  equally  clear,  that  they  would  not  compel  them  to  join  in  such 
conveyance.  The  ground  of  this  distinction  was,  that  trustees  to 
support  contingent  remainders  were  considered  as  honorary  trustees 
for  the  benefit  of  the  family;  and  the  interests  of  mankind  required 
them  to  be  treated  as  such  by  all  courts  of  justice.  And  unless  a 
violation  of  their  trust  appeared,  courts  of  equity  ought  not  to  have 
taken  away  all  their  discretion ;  or  to  direct  them  not  to  join  in  any 
conveyance  without  the  order  of  such  a  court,  although  the  trustees 
might  be  of  opinion  that  the  interests  of  the  family  required  it.  The 
effect  of  such  a  doctrine  would  have  been  to  make  the  courts  of  equity 
the  trustees  of  all  the  estates  in  the  country  [g). 

§  996a.  The  learning  as  to  the  duties  of  trustees  to  preserve  con- 
tingent remainders  has  been  rendered  of  little  importance  by  the 
Amendment  of  the  Law  of  Eeal  Property  Act,  8  &  9  Vict.'  c.  106, 
which  enacted  that  a  contingent  remainder  shall  be,  and  if  created 
before  the  passing  of  the  Act  shall  be  deemed  to  have  been  capable 

(/)  Fearne  on  Conting.  Rem.,  by  Butler,  331  to  337  and  the  cases  there  cited; 
Moody  V.  Walters,  16  Ves.  283. 

(g)  Fearne  on  Conting.  Rem.,  by  Butler,  331  to  337  and  the  cases  there  cited; 
Moody  V.  Walters,  16  Ves.  283;  Biscoe  v.  Perkins,  1  Ves.  &  B.  485. 


§  995 — 996a.]  marriage  settlements.  409 

of  taking  effect,  notwithstanding  the  determination  by  forfeiture, 
surrender,  or  merger,  of  any  preceding  estate  of  freehold,  in  the  same 
manner  in  all  respects  as  if  such  determination  had  not  happened. 
And  by  40  &  41  Vict.  c.  33,  it  was  enacted  that  every  contingent 
remainder  created  by  any  instrument  executed  after  the  passing  of  the 
Act,  which  would  have  been  valid  as  a  springing  or  shifting  use  or 
executory  dovise  or  other  limitation,  had  it  not  had  a  sufficient  estate 
to  support  it  as  a  contingent  remainder,  shall,  in  the  event  of  the 
particular  estate  determining  before  the  contingent  remainder  vests, 
be  capable  of  taking  effect  in  all  respects  as  if  the  contingent  remainder 
had  originally  been  created  as  a  springing  or  shifting  use  or  executory 
devise  or  other  executory  limitation. 


410  EQUITY    JURISPRUDENCE.  [CH.    XXV. 


CHAPTER    XXV. 


TERMS   FOE   YEARS. 


§  998.  In  the  next  place,  in  regard  to  Terms  for  Years,  whereby 
trusts  are  created  to  subserve  the  special  objects  of  the  parties.  The 
creation  of  long  terms  for  yeaxs,  for  the  purpose  of  securing  money 
lent  on  mortgage  of  the  land,  took  its  rise  from  the  inconveniences 
of  the  ancient  way  of  making  mortgages  in  fee  by  way  of  feoffment 
and  other  solemn  conveyances,  with  a  condition  of  defeasance.  For, 
by  such  mode,  if  the  condition  was  not  punctually  performed,  the 
estate  of  the  mortgagee  became  absolute  at  law  and  was  subject  to 
incumbrances  made  by  him,  and  even  (as  some  thought)  to  the  dower 
of  his  wife.  Hence  it  became  usual  to  create  long  terms  of  years  upon 
the  like  condition;  because,  among  other  reasons,  such  terms  on  the 
death  of  the  mortgagee  became  vested  in  his  personal  representatives, 
who  were  also  entitled  to  the  debt,  and  could  properly  discharge 
it  (a).  But,  as  this  subject  will  be  more  fully  considered  hereafter  (b), 
it  is  only  necessary  to  say  in  this  place,  that,  by  analogy  to  the  case  of 
mortgages,  terms  for  years  were  and  are  often  created  for  securing 
portions  for  children,  and  for  other  special  trusts.  Such  terms  did  not 
determine  upon  the  m^ere  performance  of  the  trusts  for  which  they  were 
created,  unless  there  were  a  special  proviso  to  that  effect  in  the  deed. 
The  legal  interest  thus  continued  in  the  trustee  after  the  trusts  were 
performed ;  although  the  owner  of  the  fee  was  entitled  to  the  equitable 
and  beneficial  interest  therein.  At  law  the  possession  of  the  lessee  for 
years  is  deemed  to  be  the  possession  of  the  owner  of  the  freehold  (c). 
And,  by  analogy,  courts  of  equity  held  that  where  the  tenant  for  the 
term  of  years  was  but  a  trustee  for  the  owner  of  the  inheritajice,  he 
should  not  oust  his  cestui  que  trust,  or  obstruct  him  in  any  act  of 
ownership,  or  in  making  any  assurances  of  his  estate.  In  these 
respects,  therefore,  the  term  was  consolidated  with  the  inheritance. 
It  followed  the  descent  to  the  heir,  and  all  the  alienations  made  of  the 
inheritance,  or  of  any  particular  estate  or  interest  carved  out  of  it  by 
deed,  or  by  will,  or  by  act  of  law  (d).    In  short,  a  term  attendant  upon 

(a)  Co.  Litt.  290b,  Butler's   note    (1),    §  13;    ibid.    208a,   note  (1);   Bac.    Abr. 
Mortgage,  A. 

(b)  See  post,  Chapter  on  Mortgages,  §  §  1004  to  1035. 

(c)  Jefferson  v.  Morton,  2  Wms.  Saund.  at  p.  22,  note  (4). 

(d)  Co.  Litt.  290b,  Butler's  note  (1),  §  13. 


§  998 — 999a.]  '      terms  foe  years.  411 

the  inheritance  by  express  declaration,  or  by  implication  of  law,  may 
be  said  to  be  governed  in  equity  by  the  same  rules,  generally,  to  which 
the  inheritance  is  subject. 

§  999.  Still,  although  the  trust  or  benefit  of  the  term  was  annexed 
to  the  inheritance,  the  legal  interest  of  the  term  remained  distinct  and 
separate  from  it  at  law,  and  the  whole  benefit  and  advantage  to  be 
made  of  the  term  arose  from  this  separation.  For,  if  two  or  more 
persons  had  claims  upon  the  inheritance  under  different  titles,  a  term 
of  years  attendant  upon  it  was  still  eo  distinct  from  it,  that,  if  any  one 
of  them  obtained  an  assignment  of  it,  then  (unless  he  is  affected  by 
some  of  the  circumstances  which  equity  considers  as  fraudulent,  or  as 
otherwise  controlling  his  rights)  he  was  entitled,  both  at  law  and 
in  equity,  to  the  estate  for  the  whole  continuance  of  the  term,  to  the 
utter  exclusion  of  all  the  other  claimants  (e).  This,  if  the  term  was 
of  long  duration,  absolutely  deprived  all  the  other  claimants  of  the 
enjoyment  of  the  land. 

§  999a..  The  learning  on  this  subject  is  obsolete  in  England,  and 
all  satisfied  terms  which  are  attendant  upon  the  inheritance  either  by 
express  declaration  or  by  construction  of  law  have  ceased  and  deter- 
mined since  December  31,  1845,  by  force  of  the  statute  8  &  9  Vict. 
c.  112.  And  the  statute  also  enacts  that  every  satisfied  term  of 
years,  although  by  the  Act  made  to  cease  and  determine,  is  to  afford 
every  person  the  same  protection  against  incumbrances  as  it  would 
have  afforded  if  it  had  continued  to  exist,  and  then  for  the  purpose 
of  such  protection  be  considered  in  every  court  of  law  and  of  equity  to 
be  a  subsisting  term. 

(e)  Willoughby  v.  Willoughby,  1  T.  E.  763. 


412  EQUITY    JURISPRUDENCE.  '  [CH.    XXVI. 


CHAPTER    XXVI. 


MORTGAGES. 


§  1004.  In  the  next  place  as  to  Mortgages.  It  is  wholly  unnecessary 
to  enter  into  a  minute  examination  of  the  origin  and  history  of  this 
well-known  and  universally  received  security  in  the  countries  governed 
by  the  common  law.  During  the  existence  of  the  system  of  feudal 
tenures  in  its  full  rigour,  mortgages  could  have  had  no  existence  in 
English  jurisprudence,  as  they  were  incompatible  with  the  leading 
objects  of  that  system  (a).  The  maxim  of  the  feudal  law  was 
"  Feudalia,  invito  domino,  aut  agnatis,  non  recte  subjiciuntur 
hypothecae,  quamvis  fructus,  posse  esse,  receptum  est"  (b).  But, 
as  soon  as  the  general  right  of  alienation  of  real  property  was  admitted, 
the  necessities  of  the  people  almost  immediately  led  to  the  introduction 
of  mortgages  (c).  Littleton  has  enumerated  two  sorts,  which  were 
distinguished  by  the  names  of  vadium  vidum,  and  vadium 
mortuum  (d).  The  latter  was,  in  the  common  law,  oaUed  a 
mortgage,  from  two  French  words,  m,ort  {m,ortuum,,  or  dead),  and 
g^a^e  {vadium,  pignus,  or  pledge),  because  if  not  redeemed  at  the 
stipulated  time,  it  was  dead  to  the  debtor  (e).  The  former  was  called 
simply  a" living  pledge,  in  contradistinction  to  the  latter,  for  the  reason 
given  by  Lord  Coke.  "  Vivum  autem  dicitur  vadium,  quia  nunquam 
moritur  ex  aliqua  parte,  quod  ex  suis  proventubus  acquiratur  "  (/). 
Thus,  if  a  man  borrowed  £100  of  another,  and  made  over  an  estate  of 
lands  to  him,  until  he  received  the  same  sum  out  of  the  issues  and 
profits  of  the  land,  it  was  called  a  vivum,  vadium,;  for  neither  the 
money  nor  the  land  dieth  or  is  lost.  But,  if  a  feoffment  was  made  of 
land,  upon  condition  that,  if  the  feoffor  paid  to  the  feoffee  the  sum  of 
£100  on  a  certain  day,  he  might  re-enter  on  the  land;  there,  if  he  did 
not  pay  the  sum  at  the  day,  he  could  not,  at  the  common  law,  after- 

(o)  Glanville,  Lib.  10,  c.  6. 

(b)  Bac.  Abr.  Mortgage,  A. 

(c)  2  Fonbl.  Eq.  B.  3,  ch.  1,  §  1,  and  note  (o). 

(d)  Litt.  §  §  327,  332;  Co.  Litt.  202b,  205o.  "  A  mortuum  vadium  was  similar 
to,  and  was  probably  derived  from,  the  antichnesis  of  the  Roman  Law."  Edwards 
on  Property  in  Land,  2  Ed.  p.  223,  note  (Ji). 

(e)  Glanville  seems  to  give  a  somewhat  different  explanation.  "  Mortuum  vadium 
dicitur  illud,  cujus  fructus  vel  reditus  interim  percepti  in  nullo  se  acquietant."  Glanv. 
Lib.  10,  0.  6. 

(/)  Co.  Litt.  205  a. 


§    1004—1006.]  MORTGAGES.  413 

wards  re-enter ;  but  (as  Littleton  said)  the  land  was  taken  away  from 
him  for  ever,  and  so  dead  to  him.  And  if  he  did  pay  at  the  day,  then 
the  pledge  was  dead  as  to  the  feoffee ;  and,  therefore,  the  feoffee  was 
called  tenant  in  mortgage,  the  estate  being  mortuum  vadium  {g). 

§  1005.  It  has  been  generally  supposed,  that  the  notion  of  mort- 
gages, and  of  the  redemption  thereof,  in  the  English  law,  was  borrowed 
from  the  Eoman  law,  although  Mr.  Butler  contends  that  they  were 
strictly  founded  on  the  common  law  doctrine  of  conditions  (h).  What- 
ever truth  there  may  be  in  this  latter  observation,  as  to  the  origin  of 
mortgages  of  lands  in  the  English  law,  there  is  no  doubt  that  the  notioa 
of  the  equity  of  redemption  was  derived  from  the  Eoman  law,  and  that 
it  is  purely  the  creature  of  courts  of  equity.  In  the  Roman  law  there 
were  two  sorts  of  transfers  of  property,  as  security  for  debts ;  namely, 
the  pignus  and  the  hypotheca.  The  pignus,  or  pledge,  was  when  any- 
thing was  pledged  as  a  security  for  money  lent,  and  the  possession 
thereof  was  passed  to  the  creditor,  upon  the  condition  of  returning  it 
to  the  owner  when  the  debt  was  paid.  The  hypotheca  was,  when  the 
thing  pledged  was  not  delivered  to  the  creditor,  but  remained  in  the 
possession  of  the  debtor  (t).  In  respect  to  what  was  called  an  hypothe- 
cary action. there  was  no  difference  between  them.  "  Inter  pignus  " 
(says  the  Institutes)  "  autem  et  hypothecam  (quantum  ad  actionem 
hypotheearium  attinet)  nihil  interest;  nam  de  qua  re  inter  creditorem 
et  debitorem  convenerit,  ut  sit  pro  debito  obligata,  utraque  hac  appella- 
tione  continetur.  Sed  in  aliis  differentia  est.  Nam  pignoris  appella- 
tione  eam  proprie  rem  contineri  dieimus,  quae  simul  etiam,  traditur 
ereditori ;  maxime  si  mobilis  sit.  At  eam  quas  sine  traditione  nuda 
conventione  tenetur,  proprie  hypothecae  appellatione  contineri  diei- 
mus "  (fe).  The  Digest  states  the  distinction  with  still  more  pregnant 
brevity.  ' '  Proprie  pignus  dieimus,  quod  ad  creditorem  transit  - 
hypothecam,  cum  non  transit,  nee  possessio  ad  creditorem  "  (l). 

§  1006.  In  the  Roman  law,  it  seems  that  the  word  pignus  was 
often  used  indiscriminately  to  describe  both  species  of  securities, 
whether  applied  to  movables  or  immovables.  Thus,  it  is  said  in  the 
Digest :  ' '  Pignus  contrahitur  non  sola  traditione,  sed  etiam  nuda  con- 
ventione, etsi  non  traditum  est  "  (m).  But,  in  an  exact  sense,  pignus 
was   properly   applied   to  movables,    and    hypotheca  to    immovables.. 

(g)  Littleton,  §  332;  Co.  Litt.  206a;  2  iSlaek.  Comm.  157. 

(K)  In  respect  to  mortgages  of  lands,  this  opinion  of  Mr.  Butler's  is  certainly 
entitled  to  great  consideration ;  for  Littleton  expressly  puts  mortgages  as  estates  on 
conditions.  In  respect  to  mortgages  and  pledges  of  personal  property,  there  may  have 
been  originally  a  distinction,  borrowed  from  the  civil  law.  Glanville,  Lib.  10,  c.  6. 
Courts  of  equity,  in  a  great  variety  of  cases  of  both  sorts,  act  upon  the  principles  of 
tlie  civil  law. 

(i)  Bac.  Abr.  Mortgage,  A.;  Byall  v.  Rolle,  1  Atk.  166,  167;  Story  on  Bailments,, 
§  286. 

(7c)  Just.  Inst.  Lib.  4,  tit.  6,  §  7;  Dig.  Lib.  20,  tit.  1,  f.  5,  §  1. 

(n  Dig.  Lib.  13,  tit.  7,  f.  9,  §  2. 

(to)  Ihid.  tit.  13,  f.  1. 


414  EQUITY  JURISPRUDENCE.  [CH.  XXVI. 

"  Pignus  appellatum "  (says  the  Digest)  "a  pugno,  quia  res  quae 
pignori  dantur,  manu  traduntur.  Unde  etiam  videri  potest  verum  esse, 
quod  quidam  putant,  pignus  proprie  rei  mobilis  constituti  "  (w).  So 
that  it  answered  very  nearly  to  the  corresponding  term  pledge  in  the 
common  law,  which,  although  sometimes  used  in  a  general  sense  to 
include  mortgages  of  land,  is,  in  the  stricter  sense,  confined  to  the  pawn 
and  deposit  of  personal  property.  In  the  Eoman  law,  however,  there 
was  generally  no  substantial  difference  in  the  nature  and  extent  of  the 
rights  and  remedies  of  the  parties,  between  movables  and  immovables, 
whether  pledged  or  hypothecated.  But  in  the  common  law,  as  we  shall 
presently  see,  the  difference  as  to  rights  and  remedies  between  a  pledge 
of  personal  property  and  a  mortgage  of  real  estate,  or  even  of  personal 
property,  is  very  marked  and  important  (o). 

§  1007.  In  the  Eoman  law  there  were  two  sorts  of  actions,  applic- 
able to  pledges  and  hypothecations  ;  the  action  called  actio  pignera- 
titia,  and  that  called  actio  hypothecaria.  The  former  was  properly 
an  action  in  personam,  and  divisible  into  two  sorts:  (1)  Actio  directa, 
which  lay  in  favour  of  the  debtor  against  the  creditor  to  compel  him 
to  restore  the  pledge  when  the  debt  had  been  paid  (p) ;  (2)  Actio  con- 
traria,  which  lay  in  favour  of  the  creditor  against  the  debtor,  to  recover 
the  proper  value  or  compensation,  when  the  latter  had  retained  posses- 
sion of  the  pledge,  or  when  the  title  to  it  had  failed  by  fraud  or  other- 
wise ;  or  when  the  creditor  sought  compensation  for  expenses  upon 
it  (g).  The  actio  hypothecaria,  on  the  other  hand,  was  strictly  in  rem, 
and  was  given  to  the  creditor  to  obtain  possession  of  the  pledge,  in 
whosesoever  hands  it  might  be. 

§  1008.  Without  dwelling  more  upon  topics  of  this  sort,  which  are 
purely  technical,  it  may  be  useful  to  state  as  illustrative  of  some  of  the 
doctrines  admitted  into  equity  jurisprudence,  that  under  the  civil  law, 
although  the  debt  for  which  the  mortgage  or  pledge  was  given,  was  not 
paid  at  the  stipulated  time,  it  did  not  amount  to  a  forfeiture  of  the  right 
of  property  of  the  debtor  therein.  It  simply  clothed  the  creditor  with 
the  authority  to  sell  the  pledge  and  reimburse  himself  for  his  debt, 
interest,  and  expenses ;  and  the  residue  of  the  proceeds  of  the  sale  then 
belonged  to  the  debtor.  It  has  been  supposed  by  some  writers,  that 
to  justify  such  a  sale,  it  was  indispensable  that  it  should  be  made  under 
a  decretal  order  of  some  court  upon  the  application  of  the  creditor. 
But,  although  the  creditor  was  at  liberty  to  make  such  an  application, 
it  does  not  appear  that  he  might  not  act,  in  ordinary  cases,  without 
any  such  judicial  sanction,  after  giving  the  proper  notice  of  the  intended 
sale,  as  prescribed  by  law,  to  the  debtor.     When  the  debtor  could  not 

(n)  Ibid.  tit.  13,  f.  50,  tit.  16,  f.  238,  §  2;   Story  on  Bailments,  §  286;   Ryall  v. 
Bowles,  1  Ves.  338;  s.c.  1  Atk.  166,  167. 
(o)  Story  on  Bailments,  §  286,  287. 
(p)  Just.  Inst.  Lib.  3,  tit.  15,  §  4. 
iq)  Dig.  Lib.  13,  tit.  7,  f.  3,  §  §  8,  9. 


§    1007—1010.]  MORTGAGES.  415 

be  found,  and  notice  could  not  be  given  to  him,  such  a  decretal  order 
seems  to  have  been  necessary  (r).  And,  vi'here  a  sale  could  nat  be 
effected,  a  decree,  in  the  nature  of  a  foreclosure,  could  be  obtained 
under  certain  circumstances,  by  which  the  absolute  property  would  be 
vested  in  the  creditor  (g). 

§  1009.  This  authority  to  make  a  sale,  might  be  exercised,  not  only 
when  it  was  expressly  so  agreed  between  the  parties,  but  when  the 
agreement  between  them  was  silent  on  the  subject.  Even  an  agree- 
ment between  them,  that  there  should  be  no  sale,  was  so  far  invalid, 
that  a  decretal  order  of  sale  might  be  obtained  upon  the  application  of 
the  creditor  (t).  On  the  other  hand,  if  by  the  agreement  it  was 
expressly  stipulated  that,"  if  the  debt  was  not  paid  at  the  day,  the 
property  should  belong  to  the  creditor  in  lieu  of  the  debt,  such  a  stipu- 
lation was  held  void  as  being  inhuman  and  unjust  (u). 

§  1010.  In  some  cases,  also,  by  the  civil  law,  a  sort  of  tacking  of 
debts  could  be  insisted  on  by  the  mortgagee  against  the  mortgagor;  but 
not  against  intermediate  incumbrancers  (a;).     And  where  movables  and 

(r)  Cod.  Lib.  8,  tit.  34,  f.  3,  §  §  1  to  3;  Story  on  Bailments,  §  309. 

(s)  Cod.  Lib.  8,  tit.  34,  f.  3,  §  §  2,  3;  Story  on  Bailments,  §  309. 

(t)  Dig.  Lib.  13,  tit.  7,  f.  4;  Cod.  Lib.  8,  tit.  28,  1.  14. 

(«)  Cod.  Lib.  8,  tit.  35,  1.  3. 

(s)  Ibid.  27,  f.  1;  Dig.  Lib.  20,  tit.  i,  f.  20.  In  a  previous  part  of  this  work 
(§  §  415,  420)  it  was  stated,  that  the  doctrine  of  tacking  mortgages  was  not 
known  in  the  civil  law.  Of  course,  the  remarks  there  made  were  applicable  tn 
the  case  of  tacking  a  first  and  third  mortgage,  to  the  exclusion  of  an  intermediate 
mortgagee;  and  not  what  may  be  called  a  tacking  of  debts  by  the  mortgagee,  in  the 
case  of  a  mortgagor  seeking  redemption.  It  is  clear  that  the  civil  law,  in  the  case  of 
the  mortgagor  seeking  to  redeem,  did  not  permit  it,  unless  the  mortgagor  paid,  not 
only  the  debt  for  which  the  mortgage  was  given,  but  all  other  debts  due  to  the  mort- 
gagee. Si  in  possessione  fueris  constitutus  (says  the  Code)  nisi  ea  quoque  pecunia 
tibi  a  debitore  reddatur,  vel  offeratur,  quss  sine  pignore,  debetur,  earn  restituere  propter 
exoeptionem  doli  mali  non  cogeris.  Jure  enim  contendis,  debitores  earn  solam  pecu- 
niam,  cujus  nomine  ea  pignora  obligavenmt,  offerentes  audiri  non  oportere,  nisi  pro 
ilia  satisfecerint,  quam  mutuam  simpliciter  acoeperunt.  But  then  it  is  immediately 
added  that  this  does  not  apply  to  the  case  of  a  second  creditor.  Quod  in  secundo  credi- 
tore  locum'  non  habet ;  nee  enim  iLecessitas  ei  imponitur  chirographarium  etiam 
debitum  priori  creditore  offere.  (Cod.  Lib.  8,  tit.  27,  f.  1.)  For  it  was  expressly  held 
in  the  civil  law  that,  where  there  was  a  first  mortgage,  and  then  a  second  mortgage, 
and  then  the  first  mortgagee  lent  another  sum  to  the  debtor,  he  could  not  tack  it 
against  the  second  mortgagee.  Pothier,  Pand.  Lib.  20,  tit.  4,  n.  10;  Dig.  Lib.  20, 
tit.  4,  f.  20.  Mr.  Chancellor  Kent  (4  Kent,  Comm.  Lect.  58,  p.  136,  note  (o) ;  ibid., 
pp.  175,  176,  3rd  edit.)  has  said,  that,  in  the  civil  law,  the  mortgagee  was  even 
allowed  to  tack  another  incumbrance  to  his  own,  and  thereby  to  gain  a  preference 
over  an  intermediate  incumbrance;  for  which  he  cites  Dig.  Lib.  20,  tit.  4,  f.  3.  If, 
as  I  presume,  his  meaning  is,  that  the  tacking  gave  a  preference  over  the  intermediate 
incumbrancer;  with  great  deference,  I  do  not  find  that  the  passage  cited  supports  the 
doctrine ;  and  it  seems  contrary  to  the  passages  already  cited  from  Cod.  Lib.  8,  tit.  27, 
1.  1,  and  Dig.  Lib.  20,  tit.  4,  f.  20.  There  are  other  passages  in  the  Code,  on  the 
subject  of  a  subsequent  mortgagee  acquiring  the  rights  of  a  first  mortgagee,  by  paying 
his  mortgage,  and  thereby  confirming  his  own  title  by  substitution.  But  it  appears 
to  me  that  they  do  no  more  than  subrogate  the  subsequent  mortgagee  to  all  the  rights 
of  the  first  mortgagee;  and  that  they  do  not  enlarge  thoae  rights.  See  Code,  Lib.  8, 
tit.  18,  1.  1,  5;  1  Domat,  B.  3,  tit.  1,  §  3,  arts,  7,  8;  ibid.  B.  3,  tit.  1,  §  6,  arts.  6,  7 ; 
Heinecc.  Elem.  Pand.  Ps.  4,  tit.  4,  §  35.     Doctor  Brown,  too  (1  Brown,  Civ.  Law, 


416  EQUITY  JUEISPEUDENCB.  [CH.  XXVI. 

immovables  were  included  in  the  same  mortgage,  the  movables  were 
first  to  be  sold  and  applied  in  the  course  of  payment  (y). 

§  1011.  These  instances  are  sufficient  to  show  some  .strong  analogies 
between  the  Koman  law  and  the  equity  jurisprudence  of  England  on 
the  subject  of  mortgages,  and  to  evince  the  probability,  if  not  the 
certainty,  that  the  latter  has  silently  borrowed  some  of  its  doctrines 
from  the  former  source.  But  to  develop  them  at  large  would  occupy 
too  much  space;  and  we  may  now,  therefore,  return  to  the  more 
immediate  subject  of  mortgages  at  the  common  law. 

§  1012.  We  have  already  had  occasion  to  take  notice  of  the  incon- 
veniences attendant  upon  the  creation  of  mortgages  in  fee,  and  of  the 
substitution  in  their  stead  of  terms  for  years  (z).  But,  in  truth, 
whether  the  one  course  or  the  other  was  adopted,  so  far  as  the  common 
law  was  concerned,  the  mortgagor  was  subjected  to  great  hardships  and 
inconveniences,  if  he  did  not  strictly  fulfil  the  conditions  of  the  mort- 
gage at  the  very  time  specified ;  as  he  thereby  forfeited  the  inheritance, 
or  the  term,  as  the  case  might  be,  however  great  might  be  its  intrinsic 
value,  compared  with  the  debt  for  which  it  was  mortgaged. 

§  1013.  Courts  of  equity,  therefore,  acting  upon  their  general  prin- 
ciples, could  not  fail  to  perceive  the  necessity  of  interposing  to  prevent 
such  manifest  mischief  and  injustice,  which  were  wholly  irremediable 
at  law.  They  soon  arrived  at  the  just  conclusion,  that  mortgages  ought 
to  be  treated  as  the  Roman  law  had  treated  them,  as  a  mere  security 
for  the  debt  due  to  the  mortgagee ;  that  the  mortgagee  held  the  estate, 
although  forfeited  at  law,  as  a  pledge  (a) ;  and  that  the  mortgagor  had, 
what  was  significantly  called  an  equity  of  redemption,  which  he  might 
enforce  against  the  mortgagee,  as  he  could  any  other  equitable  right, 
if  he  applied  within  a  reasonable  time  to  redeem  and  offered  a  full  pay- 
ment of  the  debt,  and  of  all  equitable  charges.  The  title  to  relief  has 
been  rested  upon  the  general  ground  that  time  was  not  deemed  of  the 
essence  of  the  contract,  subject  to  the  limitation  regarding  stale 
claims  (fc).  It  may  also  be  referred  "  to  the  common  rule  of  the  court, 
as  to  conditions  precedent.  If  the  court  can  put  the  parties  in  the  same 
situation  as  if  the  condition  had  been  performed,  it  will  never  suffer  a 

208;  id.  202),  insists  that  a  mortgagee  might  tack  another  incumbrance  to  his  mort- 
gage; and  if  he  lent  more  money  by  way  of  further  charge  on  the  estate,  he  was,  in 
the  civil  law,  preferred,  as  to  this  charge  also,  before  a  mortgage,  created  in  the  inter- 
mediate time.  He  cites  the  Dig.  Lib.  20,  tit.  i,  f.  3,  which  does  not  (as  has  been 
already  stated)  seem  to  support  the  conclusion.  In  the  equity  jurisprudence  of  England 
(as  we  have  seen),  the  heir  of  a  mortgagor  cannot  (although  the  mortgagor  himself 
may)  redeem  without  paying  the  bond-debt  of  the  mortgagor,  as  well  as  the  mortgage 
debt.  Ante,  §  418;  and  tacking  is  also  permitted  against  mesne  incumbrancers  in  cer- 
tain cases.    See  ante,  §  §  412  to  419. 

(y)  Dig.  Lib.  42,  tit.  1,  f.  16,  §  2. 

(«)  Ante,  §  998. 

(a)  Thornbrough  v.  Baker,  1  Ch.  Gas.  283;  3  Swanst.  628. 

(b)  Seton  v.  Slade,  7  Ves.  265. 


§  1011 — 1015.]  MORTGAGES.  417 

forfeiture  to  attach  "  (c).  The  latter  seems  the  safer  ground  as  a 
mortgage  could  not  be  made  irredeemable  by  contract  (d). 

§  1014.  These  doctrines  of  courts  of  equity,  were  at  first  strenuously 
resisted,  and  found  little  public  favour  owing  to  the  rigid  character  of 
the  common  law,  and  the  sturdy  prejudices  of  its  advocates.  We  are 
tpld  by  Lord  Hale,  that,  in  the  fourteenth  year  of  Eichard  II.,  Parlia- 
ment would  not  admit  of  an  equity  of  redemption  (e),  although  it  seems 
not  long  after  to  have  struggled  into  existence  (/).  Even  as  late  as  the 
latter  part  of  the  reign  of  Charles  II.,  the  same  great  judge  was  so 
little  satisfied  with  encouraging  an  equity  of  redemption,  that  in  a  case 
before  him  for  a  redemption,  he  declared,  that  by  the  growth  of  equity 
on  equity,  the  heart  of  the  common  law  is  eaten  out  and  legal  settle- 
ments are  destroyed  (g).  And,  perhaps,  the  triumph  of  common-sense 
over  professional  prejudices  has  never  been  more  strikingly  illustrated 
than  in  the  gradual  manner  in  which  courts  of  equity  have  been  enabled 
to  draw  mortgages  frora  the  stem  and  unrelenting  character  of  condi- 
tions at  the  common  law  (h).  Even  after  the  equity  of  redemption 
was  admitted,  it  was  long  maintained,  that  if  the  money  was  not  paid 
at  the  time  appointed,  the  estate  became  liable  in  the  hands  of  the 
mortgagee  to  his  legal  charges,  to  the  dower  of  his  wife,  and  to 
escheat  (i).  And  it  was  a  common  opinion,  that  there  was  no  redemp- 
tion against  those  who  came  in  by  the  post.  This  introduced  mort- 
gages for  long  terms  of  years,  the  nature  of  which  we  have  already 
somewhat  considered  (k). 

§  1015.  Courts  of  equity,  having  thus  succeeded  in  establishing  the 
doctrine,  in  conformity  to  common-sense  and  common  justice,  that  the 
mortgage  is  but  a  pledge  or  security  for  the  payment  of  the  debt,  or 
the  discharge  of  the  other  engagements  for  which  it  was  originally 
given ;  it  yet  remained  to  be  determined  what  was  the  true  nature  and 
character  of  the  equity  of  redemption,  and  of  the  relations  between  the 
mortgagor  and  mortgagee.  It  has  been  well  observed,  that  these  were 
not  actually  settled  until  a  comparatively  recent  period  (I).  It  was 
formerly  contended  that  the  mortgagor,  after  forfeiture  of  the  condi- 
tion, had  but  a  mere  right  to  reduce  the  estate  back  into  his  own  posses- 
sion by  payment  of  the  debt,  or  other  discharge  of  the  condition.     But 

(c)  Taylor  v.  Popham,  1  Bro.  C.  C.  167. 

(d)  Howard  v.  Harris,  1  Vem.  33,  190;  Fairclough  v.  Swan  Brewery,  [1912] 

A.  C.  565. 

(e)  Roscarrick  v.  BaHon,  1  Ch.  C.  219;  2  Ponbl.  Bq.  B.  3,  ch.  1,  §  2,  note  (c). 
(/)  Butler's  note  (1)  to  Co.  Litt.  204  h. 

ig)  Roscarrick  v.  Barton,  1  Ch.  C.  219. 

(h)  Butler's  note  (1)  to  Co.  Litt.  204  b ;  Bao.  Abr.  Mortgage,  A. 

(i)  Ibid. ;  2  Black.  Comiitt.  158. 

(k)  Ante,  §  998,  and  note.  Mr.  Butler  has  stated  the  advantages  and  disadvan- 
tages of  mortgages  by  vfay  of  long  terms  of  years,  in  «■  very  accurate  manner  in  his 
note  (1)  to  Co.  Litt.  204  b. 

(I)  Com.  Dig.  Chancery,  4  A.  1.  A  trust  for  sale  given  as  security  is  a  mortgage. 
Locking  v.  Parker,  L.  E.  8  Ch.  30. 

B.J.  27 


418  EQUITY    JDEISPEUDBNCB.  [OH.    XXVI. 

it  has  long  been  firmly  established,  that  the  mortgagor  has  a  beneficial 
estate  in  the  land  in  equity,  which  may  be  granted,  devised,  and 
entailed;  and  is  liable  to  tenancy  by  the  curtesy,  but  was  not,  before 
the  Dower  Act,  liable  to  dower  (m).  Further,  the  mortgagor  enjoys  all 
rights  incident  to  proprietorship  (n). 

§  1016.  In  regard  to  the  estate  of  the  mortgagee,  it  being  treate4, 
in  equity,  as  a  mere  security  for  the  debt,  it  follows  the  nature  of  the 
debt.  And,  although,  where  the  mortgage  is  in  fee,  before  the  Con- 
veyancing Act,  1881,  the  legal  estate  used  to  descend  to  the  heir  of 
the  mortgagee,  yet,  in  equity,  the  estate  of  the  mortgagee  was  always 
deemed  a  chattel  interest  and  personal  estate,  and  belonged  to  the 
personal  representative  as  assets  (o).  And  now,  by  s.  30  of  that  Act, 
it  is  enacted  that  where  an  estate  or  interest  of  inheritance,  or  limited 
to  the  heir  as  special  occupant,  is  vested  on  any  trust,  or  by  way  of 
mortgage,  in  any  person  solely,  the  same  shall,  on  his  death,  notwith- 
standing any  testamentary  disposition,  devolve  to,  and  become  vested 
in,  his  personal  representatives  or  representative  from  time  to  time,  as 
if  the  same  were  a  chattel  real  vesting  in  him  or  them.  It  is  upon  the 
same  ground,  that  an  assignment  of  the  debt  by  the  mortgagee  carries 
with  it,  in  equity,  as  an  incident,  the  interest  of  the  mortgagee  in  the 
mortgaged  property;  unless,  indeed,  the  instrument  of  assignment 
contains  a  plain  exception  of  the  latter.  The  mortgagee  is,  however, 
entitled  (unless  there  be  some  agreement  to  the  contrary)  to  enter  into 
possession  of  the  lands  and  to  take  the  rents  and  profits,  if  he  chooses 
so  to  do.  But,  in  such  cases,  he  must  account  therefor  towards  the 
discharge  of  the  debt,  after  deducting  all  reasonable  charges  and 
allowances  (p).  So,  he  may  grant  leases  of  the  premises,  and  might, 
previously  to  the  Conveyancing  Act,  1881,  have  avoided  any  leases 
which  had  been  made  by  the  mortgagor  subsequent  to  his  mortgage  (q). 
The  learned  author  in  this  and  other  paragraphs  had  expressed  the 
opinion  that  a  mortgagee  was  a  trustee  for  the  mortgagor.  He  may  be 
as  soon  as  the  debt  is  discharged,  whatever  be  the  means,  a  trustee  of 
the  land  or  of  the  surplus  proceeds  of  sale ;  but  so  long  as  the  relation 
of  mortgagor  and  mortgagee  subsists,  he  holds  the  property  for  his  own 
benefit  and  is  in  no  sense  a  trustee  for  the  mortgagor  (r).  Accordingly 
a  mortgagee  of  renewable  leaseholds,  if  out  of  possession,  may  obtain  a 

(m)  Casborne  v.  Scarfe,  1  Atk.  603;  Tarn  v.  Turner,  39  Ch.  D.  546. 

(re)  Fairclough  v.  Marshall,  i  Ex.  D.  37;  Gelder  Apsimon  iC  Co.  v.  Smcerhy 
Bridge  Flour  Society,  44  Ch.  D.  374. 

(o)  2  Fonbl.  Bq.  B.  3,  ch.  1,  §  13,  note  (e);  Co.  Litfc.  208  b,  Butler's  note  (1); 
1  Mad.  Pr.  Ch.  412;  Com.  Dig.  Chancery,  4  A.  9. 

(p)  Mayer  v.  Murray,  8  Ch.  D.  424.    See  Parkinson  v.  Hanbury,  L.  R.  2  H.  L.  1. 

(9)  An  advanced  paynieut  of  rent  to  the  mortgagor  is  not  good  against  the  mort- 
gagee, though  made  in  ignorance  of  the  mortgage.  De  Nicholls  v.  Saunders,  L  E 
5  C.  P.  S89. 

(r.)  Kirkwood  v.  Thompson,  2  H.  &  M.  892 ;  affd.  2  De  G.  J.  &  S.  613 ;  Warner  v. 
Jacob,  20  Ch.  D.  220;  Taijlor  v.  Russell,  [1892]  A.  C.  244.  See  Darlow  v  Cooper 
34  Beav.  281. 


§    1016—1017.]  MORTGAGES.  419 

renewal  of  the  lease  for  his  own  benefit,  unless  there  has  been  some 
fraud  or  underhand  contrivance  on  his  part  (s).  On  the  other  hand,  a 
mortgagor  could  not  derogate  from  his  grant  (t). 

§  1016a.  Where  the  mortgagee  enters  into  possession  of  the  mort- 
gaged property,  he  is  of  course  accountable  for  the  rents  and  profits. 
And  courts  of  equity  will,  under  such  circumstances,  ordinarily  require 
annual  rests  to  be  made  in  settling  the  accounts,  unless  the  interest  of 
the  mortgage  is  in  arrear  at  the  time  when  the  mortgagee  takes  pos- 
session, or  there  exist  special  circumstances  (m).  And  when  the  prin- 
cipal mortgage  debt  is  entirely  paid  off,  annual  rests  upon  the  mort- 
gagee's subsequent  receipts  are  made  as  a  matter  of  course  (x). 

§  1016b.  In  respect  to  the  rights  of  a  mortgagee  in  possession,  or 
selling  under  his  power  of  sale,  it  may  be  stated  that  he  will  in  equity 
be  allowed  for  all  repairs  necessary  for  the  support  of  the  property;  and 
for  general  improvements  even  if  made  without  the  acquiescence  or 
consent  of  the  mort-gagor,  provided  they  enhance  the  value  of  the  estate, 
and  are  not  of  such  a  nature  as  to  cripple  the  right  or  power  of  redemp- 
tion (y).  Notice  to  the  mortgagor  is  only  material  when  the  expendi- 
ture is  unreasonable  for  the  purpose  of  showing  the  mortgagor 
acquiesced  in  it  (a).  And  in  no  case  will  a  court  of  equity  permit  a 
mortgagee  to  commit  waste  or  do  damage  to  the  estate,  as,  for  example, 
by  pulling  down  cottages  (a). 

§  1017.  In  regard  to  the  mortgagor,  he  is  not,  unless  there  be  some 
special  agreement  to  that  effect,  entitled  of  right  to  the  possession  of 
the  land  mortgaged.  But  he  holds  it  solely  at  the  will  and  by  the 
permission  of  the  mortgagee,  who  may  at  any  time,  by  an  ejectment 
without  giving  any  prior  notice,  recover  the  same  against  him  or  his 
tenants.  In  this  respect,  the  estate  of  the  mortgagor  at  law  is  inferior 
to  that  of  a  tenant  at  will  (b).  But  so  long  as  he  continues  in  posses- 
sion by  the  permission  of  the  mortgagee,  he  is  entitled  to  take  the 
rents  and  profits  in  his  own  right,  without  any  account  whatsoever 
therefor  to  the  mortgagee  (c).  Indeed,  for  all  purposes,  except  where 
the  interest  of  the  mortgagee  is  concerned,  the  mortgagor  is  treated  as 
the  substantial  owner  of  the  estate  (d)     He  will  not,  however,  be  per- 

(s)  Nesbitt  v.  Tredennick,  2  Ball  &  B.  29. 

(t)  Leigh  v.  Burnett,  29  Ch.  D.  231. 

(m)  Sheppard  v.  Elliot,  i  Madd.  254;  Schofield  v.  Ingham,  C.  P.  Coop.  477;  Hor- 
lock  V.  Smith,  I  Coll.  287. 

(x)  Ashworth  v.  Lord,  36  Ch.  D.  545. 

iy)  Sandon  v.  Hooper,  6  Beav.  246 ;  Tipton  Green  Colliery  v.  Tipton  Moat  Col- 
liery, 7  Ch.  T>.  192;  Shepard  v.  Jones,  21  Ch.  D.  469;  Henderson  v.  Astwood,  [1894] 

A.  C.  150. 

(z)  Shepard  v.  Jones,  21  Ch.  D.  469.  (a)  Shepard  v.  Jones,  21  Ch.  D.  469. 

(b)  Butler's  note  (1)  to  Co.  Litt.  204  b;  Keech  v.  Hall,  Doug.  21;  Moss  v.  Galli- 
more,  Doug.  279. 

(c)  Ex  parte  Wilscm,  2  Ves.  &  B.  252;  In  re  Hoare,  Hoare  v.  Owen,  [1892]  3 

Ch.  94. 

(.d)  Van  Gelder  Apsimon  &  Co.  v.  Sowerby  Bridge  Flour  Society,  44  Ch.  D.  374. 


420  EQUITY  JUEISPEUDENCE.  [CH.  XXVI. 

mitted  to  do  any  acts  jeopardizing  the  sufficiency  of  the  security  of  the 
mortgagee  (c). 

§  1018.  As  to  what  constitutes  a  mortgage,  there  is  no  difficulty 
whatever  in  courts  of  equity,  although  there  may  be  technical  embar- 
rassments in  courts  of  law.  The  peurticular  form  or  words  of  the  con- 
veyance are  unimportant;  and  it  may  be  laid  down  as  a  general  rule, 
subject  to  few  exceptions,  that  wherever  a  conveyance,  assignment,  or 
other  instrument,  transferring  an  estate,  is  originally  intended  between 
the  parties  as  a  security  for  money,  or  for  any  other  incumbrance 
whether  this  intention  appear  from  the  same  instrument  or  from  any 
other  (/),  it  is  always  considered  in  equity  as  a  mortgage,  and  conse- 
quently is  redeemable  upon  the  performance  of  the  conditions  or 
stipulations  thereof  (g).  Even  parol  evidence  is  admissible  in  some 
cases,  as  in  cases  of  fraud,  accident,  and  mistake,  to  show  that  a  con- 
veyance, absolute  on  its  face,  was  intended  between  the  parties  to  be 
a  mere  mortgage  or  security  for  money ;  but  the  evidence  is  -  to  be 
regarded  with  suspicion  (h). 

§  1019.  So  inseparable,  indeed,  is  the  equity  of  redemption  from  a 
mortgage,  that  it  cannot  be  disannexed,  even  by  an  express  agreement 
of  the  parties.  If,  therefore,  it  should  be  expressly  stipulated,  that 
unless  the  money  should  be  paid  at  a  particular  day,  or  by  or  to  a  par- 
ticular person,  the  estate  should  be  irredeemable,  the  stipulation  would 
be  utterly  void  (z).  In  this  respect  courts  of  equity  act  upon  the  same 
principle,  which  (we  have  seen)  is  avowed  in  the  civil  law  (k) ;  and  most 
probably  it  has  been  borrowed  from  that  source.  A  distinction  also  is 
taken,  like  that  in  the  civil  law,  between  a  conditional  purchase,  or  an 
agreement  for  a  repurchase,  and  a  mortgage,  properly  so  called  (l). 
The  former,  if  clearly  and  satisfactorily  proved  to  be  a  real  sale,  and 
not  a  mere  transaction  to  disguise  a  loan,  will  be  held  valid,  although 
every  transaction  of  this  sort  is  watched  with  jealousy  (w). 

§  1020.  Mortgages  may  not  only  be  created  by  the  express  deeds 
and  contracts  of  the  parties,  but  they  may  also  be  implied  in  equity 
from  the  nature  of  the  transactions  between  the  parties;  and  then 
they  are  termed  equitable  mortgages.      Thus,  for  instance,  it  is  now 

(e)  Humphreys  v.  Harrison,  1  Jac.  &  W.  581 ;  King  v.  Smith,  2  Hare,  239. 

{/)  Gordon  v.  Selby,  11  Bligh  N.  S.  351 ;  Waters  v.  Mynn,  14  Jur.  341. 

(g)  Butler's  note  (1)  to  Co.  Litt.  203b. 

(h)  Langton  v.  Horton,  5  Beav.  9;  Holmes  v.  Matthews,  9  Moo.  P.  C.  413. 

(t)  Butler's  note  (1)  to  Co.  Litt.  204 h ;  Howard  v.  Harris,  1  Vern.  190;  Fair- 
clough  v.  Swan  Brewery  Co.,  [1912]  A.  C.  565. 

(fc)  Ante,  §  1009;  Story  on  Bailm.  §  345. 

(I)  Potest  ita  fiere  pignoris  datio,  hypothecffive  (says  the  Digest),  ut  si  intra  certum 
tempus  Don  sit  aoluta  peeunia,  jure  emptoris  possideat  rem,  justo  pretio  tunc  sesti- 
mandam  ;  hoc  enim  caeu  videtur  quodammodo  conditionalis  esse  venditio.  Dig.  Lib. 
20,  tit.  1,  f.  16,  §  9.  This  approaches  nearer  to  a  right  of  pre-emption  than  to  a  con- 
ditional sale.     See  Orby  v.  Trigg,  2  Eq.  Cas.  Abr.  599,  pi.  25;  s.c.  .9  Mod.  2. 

(to)  Butler's  note  (1)  to  Co.  Litt.  204  h ;  Goodman  v.  Grierson,  2  Ball  &  Beat. 
278;  Williams  v.  Owen,  5  M.  &  Cr.  303;  Perry  v.  Meadowcroft,  4  Beav.  197-  affd 
12  L.  J.  Ch.  104. 


§    1018—1020.]  MORTGAGES.  421 

settled  that  if  the  debtor  deposits  his  title-deeds  to  an  estate  with  a 
creditor,  as  security  for  an  antecedent  debt,  or  upon  a  fresh  loan  of 
money,  it  is  a  valid  agreement  for  a  mortgage  between  the  parties, 
and  is  not  within  the  operation  of  the  Statute  of  Frauds  (n).  This 
doctrine  has  sometimes  been  thought  difficult  to  be  maintained  either 
upon  the  ground  of  principle  or  public  policy.  And  although  it  is  firmly 
established,  it  was  at  first  received  with  no  small  hesitation  and  dis- 
approbation, and  a  disposition  was  strongly  evinced  not  to  enlarge  its 
operation  (o).  It  is  generally  applied  to  enforce  parol  agreements  to 
make  a  mortgage,  or  to  make  a  deposit  of  title-deeds  for  such  a  purpose ; 
but  it  is  strictly  confined  to  an  actual,  immediate,  and  bond  fide  deposit 
of  the  title-deeds  with  the  creditor  (p),  or  with  some  other  person  over 
whom  the  depositor  has  no  control  (g) ;  as  a  security,  in  order  to  create 
the  lien.  It  is  not  necessary  that  all  the  title-deeds  relating  to  the 
property  should  be  deposited,  in  order  to  constitute  a  mortgage  by 
deposit,  it  is  sufficient  that  material  title-deeds  have  been  handed 
over  (r).  The  mere  deposit  of  title-deeds  by  a  debtor  with  his  creditor 
presumptively  creates  an  equitable  mortgage  by  deposit  (s),  but  in  the 
case  of  a  claim  against  the  estate  of  a  dead  person  usually  requires  to 
be  corroborated  (t).  As  equity  looks  upon  that  as  done  which  has  been 
agreed  to  be  done,  and  prefers  substance  to  form  (u),  as  indeed  does 
the  common  law  (x),  handing  over  title-deeds  with  a  view  to  the  execu- 
tion of  a  formal  document  will  create  a  charge  for  moneys  advanced, 
unless  it  appear  that  it  was  the  intention  of  the  parties  that  no  charge 
should  be  created  until  a  formal  document  was  executed  (j/).  A  deposit 
of  deeds  may  create  a  charge  not  only  for  moneys  contemporaneously 
advanced,  but  for  subsequent  advances  if  those  be  the  conditions 
agreed  upon,  where  the  original  advance  is  made  (z),  otherwise  there 
must  be  evidence  to  displace  the  objection  of  the  Statute  of  Frauds  (a). 
Although  the  charge  may  be  available  between  the  immediate  parties 
the  charge  may  not  be  effectual  against  the  adverse  claim  of  a  party 
claiming  under  the  mortgagor  as  a  bond  fide  purchaser  for  value 
without  notice,  and  possessed  of  the  legal  estate  (6). 

(n)  Russell  v.  Russell,  1  Bro.  C.  C.  269,  decided  by  Lord  Thurlow,  and  Mr.  Belt's 
note  (1).  See  an  excellent  statement  of  the  principle  by  Lord  Abinger,  C.B.,  Keys  v. 
Williams,  3  Y.  &  C.  Ex.  55,  at  p.  69. 

(o)  Ex  parte  Haigh,  11  Ves.  403;  Ex  parte  Hooper,  19  Ves.  477;  1  Mer.  7. 

(p)  Fenwick  v.  Potts,  8  De  G.  M.  &  G.  506;  Ex  parte  Broderick,  18  Q.  B.  D. 
380,  766.  (q)  Lloyd  v.  Attwood,  3  De  G.  &  J.  214. 

(r)  Goodwin  v.  Waghorn,  4  L.  J.  N.  S.  Ch.  172 ;  Lacon  v.  Allen,  3  Drew.  579. 

(s)  Bozon  V.  Williams,  3  Y.  &  J.  150. 

(t)  Chapman  v.  Chapman,  13  Beav.  308. 

(«)  Fairclough  v.  Marshall,  4  Ex.  D.  37.         (x)  Doe  v.  Davies,  2  M.  &  W.  502. 

(y)  Edge  v.  Worthington,  1  Cox.  211;  Keys  v.  Williams,  3  Y.  &  C.  Ex.  55;  Lloyd 
V.  Attwood,  a  De  G.  &  J.  614. 

(z)  Ex  parte  Longston,  17  Ves.  227;  Maugham  v.  Ridley,  8  L.  T.  N.  S.  309. 

(a)  Ex  parte  Kensington,  2  Ves.  &  B.  79. 

(6)  Bozon  V.  Williams,  3  Y.  &  J.  150;  West  v.  Reed,  2  Hare,  249;  Ratclijfe  v. 
Barnard,  L.  E.  6  Ch.  652. 


422  EQUITY    JUaiSPRUDENCB.  [CH.    XXVI. 

§  1021.  As  to  the  kinds  of  property  which  may  be  mortgaged,  it 
may  be  stated  that,  in  equity,  whatever  property,  personal  or  real,  is 
capable  of  an  absolute  sale,  may  be  the  subject  of  a  mortgage.  This 
is  in  conformity  to  the  doctrine  of  the  civil  law:  "  Quod  emptionem 
venditionemque  recipit,  etiam  pignorationem  recipere  potest "  (c). 
Therefore,  rights  in  remainder  and  reversion,  possibilities  coupled  with 
an  interest,  rents,  franchises,  and  choses  in  action,  are  capable  of  being 
mortgaged.  After  considerable  doubt,  it  is  finally  settled  that  even  a 
mere  naked  possibility  or  expectancy,  such  as  that  of  an  heir  or  of  a 
devisee  or  legatee,  can  validly  be  the  subject  of  a  mortgage  (d).  In 
this  respect  the  civil  law  seems  to  differ  from  ours ;  for  a  party  might 
by  that  law  mortgage  property,  to  which  he  had  no  present  title  by 
contract  or  otherwise  (e). 

§  1022.  As  to  the  persons  who  axe  capable  of  mortgaging  an  estate, 
nothing  need  be  said  in  this  place,  except  so  far  as  regards  persons  who 
have  qualified  interests  therein,  or  are  trustees  in  autre  droit,  or  are 
clothed  with  particular  powers  for  limited  purposes.  And  here,  very 
difficult  questions  may  arise,  as  to  the  construction  of  such  powers,  and 
the  competency  of  such  persons  to  make  mortgages.  Thus,  for  example, 
if  a  power  is  given  to  trustees  to  sell  for  the  purpose  of  raising  money, 
a  question  may  arise,  whether  they  may  raise  money  by  way  of  mort- 
gage. But  the  solution  of  such  questions  properly  belongs  to  a  treatise 
on  powers  (/). 

§  1023.  As  to  the  right  of  redemption.  From  what  has  been  already 
stated,  it  is  clear  that  the  equity  of  redemption  is  not  only  a  subsisting 
estate  and  interest  in  the  land  in  the  hands  of  the  heirs,  devisees, 
assignees,  and  representatives  (strictly  so  called)  of  the  mortgagor ;  but 
it  is  also  in  the  hands  of  any  other  persons,  who  have  acquired  any 
interest  in  the  lands  mortgaged  by  operation  of  law,  or  otherwise,  in 
privity  of  title  (g).  Such  persons  have  a  clear  right  to  disengage  the 
property  from  all  incumbrances,  in  order  to  make  their  own  claims 
beneficial  or  available.  Hence  a  tenant  for  life,  a  tenant  by  the  curtesy, 
a  jointress,  a  tenant  in  dower,  in  some  cases  (h),  a  reversioner,  a  remain- 
derman, a  judgment  creditor,  a  tenant  by  elegit,  the  lord  of  a  manor 

(c)  Dig.  Lib.  20,  tit.  1,  f.  9,  §  1. 

(d)  Beckley  v.  Newland,  2  P.  Will.  182;  Hobson  v.  Trevor,  2  P.  Will.  191,  decided 
by  Lord  Macclesfield ;  Wright  v.  Wright,  1  Ves.  Sen.  409,  decided  by  Lord  Hard- 
wicke;  Wethered  v.  Wethered,  2  Sim.  183;  Lyde  v.  Mynn,  1  Myl.  &  K.  683. 

(e)  1  Domat,  B.  3,  tit.  1,  §  3,  art.  6,  20.  In  Ex  parte  Arrowsmith,  In  re  Levison, 
18  Ch.  D.  967,  it  was  held  that  a  mortgage  of  pew  rents  made  by  the  vicar  of  a  dis- 
trict church  is  void  under  the  Act  13  Bliz.  o.  20.  But  in  In  re  Mirams,  [1891]  1  Q.  B. 
694,  it  was  held  that  the  chaplain  of  a  workhouse  could  make  a  valid  mortgage  of  his 
salary,  on  the  ground  that  he  was  not  a  public  officer,  and  therefore  that  it  was  not 
against  public  policy  to  allow  him  to  mortgage.     Vide  supra,  §  294. 

(/)  Sugden  on  Powers,  ch.  9,  §  2,  p.  437;  id.  art.  3,  pp.  472,  478  (2nd  edit.); 
Mills  V.  Banks,  3  P.  Will.  1,  6. 

ig)  Co.  Litt.  208,  Butler's  note  (1). 

(??,)  Co.  Litt.  208,  Butler's  note  (1);  Swannock  v.  Lifford,  Ambler,  6;  Kinnoul  v. 
Money,  3  Swanst.  208 ;  Dawson  v.  Bank  of  Whitehaven,  6  Ch.  D.  218. 


§    1021 1024.  J  MORTGAGES.  423 

holding  by  escheat  (z),  and,  indeed,  every  other  person,  being  an  incum- 
brancer, or  having  legal  or  equitable  title,  or  lien  therein,  may  insist 
upon  a  redemption  of  the  mortgage,  in  order  to  due  enforcement  of 
their  claims  and  interests  respectively  in  the  land  (fc).  When  any  such 
person  does  so  redeem,  he  or  she  becomes  substituted  to  the  rights  and 
interests  of  the  original  mortgagee  in  ijhe  land,  exactly  as  in  the  civil 
law.  And  in  some  cases  (as  we  have  already  seen)  a  further  right  of 
priority  by  tacking  may  sometimes  be  required  beyond  what  the  civil 
law  allowed  (I).  But  no  person,  except  a  mortgagor,  his  heirs,  or 
privies  in  estate,  has  a  right  to  redeem,  or  to  call  for  an  accoimt,  unless, 
indeed,  it  can  be  shown  that  there  is  collusion  between  them  and  the 
mortgagee.  Hence  it  is,  that  a  mere  annuitant  of  the  mortgagor  (who 
has  no  interest  in  the  land)  has  no  title  to  redeem  (m). 

§  1023&.  By  the  Conveyancing  Act,  1881,  s.  25,  it  is  enacted 
that  any  person  entitled  to  redeem  mortgaged  property  may  have  a 
judgment  or  order  for  sale  instead  of  for  redemption  in  an  action 
brought  by  him  either  for  redemption  alone,  or  for  sale  alone,  or  for 
eaJe  or  for  redemption  in  the  alternative.  And  by  sub-section  2  it  is 
enacted  that  in  any  action,  whether  for  foreclosure  or  for  redemption, 
or  for  sale  or  for  the  raising  and  payment  in  any  manner  of  the 
mortgage-money,  the  court,  on  the  request  of  the  mortgagee,  or  of 
any  person  interested  either  in  the  mortgage-money,  or  in  the  right 
of  redemption,  and  notwithstanding  the  dissent  of  any  other  person, 
and  notwithstanding  that  the  mortgagee  or  any  person  so  interested 
does  not  appear  in  the  action,  and  without  allowing  any  time  for 
redemption  or  for  payment  of  any  mortgage-money,  may,  if  it  think 
fit,  direct  a  sale  of  the  mortgaged  property  on  such  terms  as  it  thinks 
fit,  including,  if  it  thinks  fit,  the  deposit  in  court  of  a  reasonable  sum 
fixed  by  the  court,  to  meet  the  expenses  of  sale  and  to  secure 
performance  of  the  terms. 

§  1024.  As  to  the  corresponding  right  of  foreclosure,  and  other 
remedies  for  the  mortgagee,  to  secure  the  due  discharge  of  the 
mortgage,  they  naturally  flow  from  the  principles  already  stated.  "We 
have  already  seen  (n.),  that,  in  the  civil  law,  there  were  two  remedies 
allowed  to  the  mortgagee,  a  reniedy  m  rem,  and  also  a  remedy  in 
personam,  against  the  mortgagor  for  the  debt.  The  general  remedy 
in  rem  was  by  a  sale  by  the  mortgagee  of  the  mortgaged  estate,  either 
under  a  judicial  decree,  or  without  such  a  decree,  by  his  own  voluntary 
act  of  sale,  after  a  certain  fixed  notice  to  the  debtor.  In  either  case, 
the  sale,  if  bond  fide  and  regularly  made,  was  valid  to  pass  the  absolute 

(i)  Downe  v.  Morris,  3  Hare,  394. 

(k)  Tarn  v.  Turner,  39  Ch.  D.  456. 

(I)  Ante,  §  §  412  to  421;  ante,  §  1010,  and  note;  Com.  Dig.  Chancery,  4  A.  10. 

(m)  White  v.  Parnther,  1  Knapp,  P.  C.  229;  Troughton  v.  Binkes,  6  Ves.  672. 

(n)  Ante,  §  1007. 


424  EQUITY   JURISPEUDENCE.  [CH.    XXVI. 

title  to  the  estate  against  the  mortgagor  and  his  heirs ;  and  the  proceeds 
were  first  to  be  applied  to  the  discharge  of  the  debt ;  and  the  surplus, 
if  any,  was  to  be  paid  over  to  the  mortgagor  or  his  representatives. 
This  seems  to  have  been  the  ordinary  course  in  the  civil  law,  in  order 
to  obtain  satisfaction  of  the  debt  out  of  the  mortgaged  estate.  But  in 
some  cases,  and  especially  where  a  sale  could  not  be  made  effectual, 
a  decree  might  be  obtained,  in  the  nature  of  a  foreclosure,  by  which, 
after  certain  judicial  proceedings,  the  absolute  dominion  of  the  property 
would  be  passed  to  the  mortgagee  (o).  This  was  probably  the  origin 
of  the  present  mode  of  extinguishing  the  rights  of  the  mortgagor  by 
a  decree  of  foreclosure  in  a  court  of  equity. 

§  1025.  The  natural  course,  and  certainly  the  most  convenient  and 
beneficial  course  for  the  mortgagor,  would  seem  to  be,  for  the  court 
to  follow  out  the  civil  law  rules  on  this  subject;  that  is  to  say, 
primarily  and  ordinarily,  to  direct  a  sale  of  the  mortgaged  property, 
giving  the  debtor  any  surplus  after  discharging  the  mortgaged  debt; 
and,  secondly,  to  apply  the  remedy  of  foreclosure  only  to  special  cases, 
where  the  former  remedy  would  not  apply,  or  might  be  inadequate 
or  injurious  to  the  interests  of  the  parties. 

§  1026.  In  England  a  practice  widely  different  prevailed.  In  the 
eyes  of  a  court'  of  equity  the  property  was  regarded  as  of  secondary 
importance  to  the  money  of  which  repayment  was  secured  by  the 
conveyance  of  the  property.  The  mortgagee  was  entitled  to  sue  the 
mortgagor,  and  failing  satisfaction  could  then  have  recourse  to  the 
land  (p),  but  if  he  proceeded  against  the  property  in  the  first  instance, 
he  was  precluded  from  suing  the  mortgagor  for  any  balance  which  the 
property  had  failed  to  satisfy,  unless  he  could  restore  possession  of 
the  property  to  the  mortgagor  (g).  Speaking  generally,  a  bill  for 
a  foreclosure  was  deemed,  in  common  cases,  the  exclusive  and  appro- 
priate remedy;  and  the  courts  of  equity  refused,  except  in  special 
cases,  to  decree  a  compulsory  sale  against  the  will  of  the  mortgagor. 
These  courts,  however,  departed  from  this  general  rule  in  certain  cases  : 

(1)  where    the    estate    was    deficient    to   pay    the    incumbrance    (r) ; 

(2)  where  the  mortgagor  was  dead,  and  there  was  a  deficiency  of 
personal  assets  (s) ;  (3)  where  the  mortgage  was  of  a  dry  reversion  (t) ; 
(4)  where  the  mortgagor  died,  and  the  estate  descended  to'  an 
infant  (u) ;  (5)  where  the  mortgage  was  of  an  advowson  (x) ;  (6)  where 
the  mortgagor  became  bankrupt,   and  the  mortgagee  prayed  a   sale ; 

(0)  Ante,  §  §  1008,  1009. 
(p)  Lockhardt  v.  Hardy,  9  Beav.  349. 

(g)  Perry  v.  Barker,  8  Ves.  527;  13  Ves.  198;  Lockhardt  v.  Hardy,  9  Beav.  849; 
Palmer  v.  Hendrie,  27  Beav.  349;  28  Beav.  341. 
(r1  Dashioood  v.  Bithazey,  Mos.  196. 
(s)  Daniel  v.  Skipwith,  2  Bro.  C.  C.  155. 
(t)  How  V.  Vigures,  1  Ch.  Gas.  32. 

(«)  Booth  V.  Rich,  1  Vern.  295;  Mondey  v.  Mondey,  1  Yes.  &  B.  228. 
(x)  Mackenzie  v.  Robinson,  3  Atk.  569. 


§  1025 1028.]  MORTGAGES.  425 

(7)  or  where  the  mortgagor  died,  and  the  mortgagee  by  his  bill, 
brought  against  the  executor  or  administrator  and  the-  heir,  prayed 
for  the  sale  of  the  mortgaged  estate,  alleging  it  to  be  scanty  security, 
and  for  the  payment  of  any  deficiency  out  of  the  general  estate  of  the 
deceased  mortgagor  (j/) ;  (8)  where  the  mortgage  is  of  land,  and  by  the 
local  law  is  subject  to  a  sale  (a) ;  such  as,  for  example,  in  Ireland  and 
America. 

§  1027.  It  is  difficult  to  perceive  any  solid  or  distinct  ground, 
upon  which  these  exceptions  stand,  which  would  not  justify  the 
courts  of  equity  in  decreeing  a  sale  at  all  times,  when  it  is  prayed 
for  by  the  mortgagee,  or  when  it  would  be  beneficial  to  the  mortgagor. 
The  inconveniences -of  the  existing  practice  of  foreclosure  are  so  great, 
that  it  has  become  a  common  practice  to  insert  in  mortgages  a  power 
of  sale  upon  default  of  payment.  And,  although  Lord  Eldon,  at 
first,  intimated  an  opinion  unfavourable  to  such  a  power,  as  dangerous, 
it  is  now  firmly  established,  and  now  by  statute  a  power  of  sale  unless 
excluded  by  the  mortgage  instrument  is  implied  in  every  mortgage 
made  by  deed  (a). 

§  1027a.  By  the  Chancery  Improvement  Act  (15  &  16  Vict.  e.  86) 
power  was  given  to  the  Court  of  Chancery  to  decree  a  sale  instead  of 
foreclosure  on  such  terms  as  the  court  might  think  fit,  and  if  the 
court  thought  fit  without  previously  determining  the  prioritdes  of 
incumbrances,  or  giving  the  usual,  or  any  time,  to  redeem;  and  this 
provision  has  been  repealed,  but  re-enacted  and  enlarged  by  the 
Conveyancing  Act,  1881,  s.  25.  A  sale  can  under  this  Act  be  ordered 
of  the  mortgaged  property  on  an  interlocutory  application  made  before 
the  trial  of  the  action  by  any  party  interested  in  the  equity  of 
redemption  (b). 

§  1028.  In  actions  for  the  redemption  of  mortgages,  where  there 
are  various  persons  claiming  adverse  rights  and  limited  interests  in  the 
mortgaged  estate,  it  often  becomes  necessary  to  direct  how  assets  and 
securities  are  to  be  marshalled,  in  order  to  do  justice  between  the  differ- 
ent claimants,  and  to  prevent  irreparable  mischiefs,  as  well  as  to  ascer- 
tain the  amounts  and  proportions  in  which  they  should  contribute 
towards  the  discharge  of  the  incumbrances  common  to  them  all.  This 
subject,  in  many  of  its  most  important  bearings,  has  already  been 
examined  in  other  places  (c).  Similar  principles  prevailed  (as  we  have 
seen),  to  a  great  extent,  in  the  civil  law,  in  which  the  right  of  substi- 
tution was  admitted  as  well  as  what  was  technically  called  the  benefit 

(y)  King  v.  Smith,  2  Hare,  239. 

(z)  Stileman  v.  Ashdown,  2  Atk.  477,  608;  s.c.  Ambler  13,  and  Mr.  Blunt 's  note, 
p.  16,  note  (b);  post,  §  1216a. 

(a)  Croft  V.  Powell,  Comyns,  603;  Anon.,  6  Mad.  16;  Gorder  v.  Morgan,  18  Ves. 
344.      See  Conveyancing  Act,  1881,  ss.  19,  20,  21;  and  Conyeyancing  Act,  1911,  s.  5. 

(b)  WoolUy  V.  Golman,  21  Oh.  D.  169. 

(c)  Ante,  §  §  499,  358  to  560,  564,  565,  567,  574,  633  to  636. 


426  EQUITY  JURISPRUDENCE.  [CH.  XXVI. 

of    discussion,    answering,    in    some    measure,    to    our    doctrine    of 
marshalling  assets  and  securities  (d). 

§  1028a.  In  respect  to  the  time  within  which  a  mortgage  is  redeem- 
able, it  may  be  remarked,  that  there  is  now  a  statutory  limitation  of 
twelve  years  from  the  time  when  the  mortgagee  has  entered  into  posses- 
sion, after  breach  of  condition,  under  his  title,  by  analogy  to  the  ordinary 
limitation  of  rights  of  entry  and  actions  of  ejectment.  If,  therefore,  the 
mortgagee  enters  into  possession  in  his  character  of  mortgagee,  and  by 
virtue  of  his  mortgage  alone,  he  is  for  twelve  years  liable  to  be  redeemed  ; 
but  if  the  mortgagor  permits  the  mortgagee  to  hold  the  possession  for 
twelve  years  without  accounting,  or  without  admitting  that  he  pos- 
sesses a  mortgage  title  only,  the  mortgagor  loses  his  right  of  redemption, 
and  the  title  of  a  mortgagee  becomes  as  absolute  in  equity,  as  it  previ- 
ously was  in  law.  In  such  a  case  the  time  begins  to  run  against  the 
mortgagor  from  the  moment  the  mortgagee  takes  possession  in  his  char- 
acter as  such ;  and  if  it  has  once  begun  to  run,  and  no  subsequent  admis- 
sion is  made  by  the  mortgagee,  it  continues  to  run  against  all  persons 
claiming  under  the  mortgagor,  whatever  may  be  the  disabilities  to  which 
they  may  be  subjected  (dd).  But  if  the  mortgagee  enters,  not  in  his 
character  of  mortgagee  only,  but  as  purchaser  of  the  equity  of  redemp- 
tion, he  must  look  to  the  title  of  his  vendor  and  the  validity  of  the  con- 
veyance which  he  takes.  So  that,  if  the  conveyance  be  such  as  gives 
him  the  estate  of  a  tenant  for  life  only  in  the  equity  of  redemption, 
there,  as  he  unites  in  himself  the  characters  of  mortgagor  and  mort- 
gagee, he  is  bound  to  keep  down  the  interest  of  the  mortgage  like  any 
other  tenant  for  life  for  the  benefit  of  the  persons  entitled  to  the  re- 
mainder; and  time  will  not  run  against  the  remainderman  during  the 
continuance  of  the  life  estate  (e). 

§  1028b.  Similar  considerations  will,  in  many  respects,  apply  to  the 
right  of  foreclosure  of  a  mortgage.  If  the  mortgagee  has  suffered  the 
mortgagor  to  remain  in  possession  for  twelve  years  after  the  breach  of 
the  condition,  without  any  payment  of  interest,  or  any  admission  of 
the  debt,  or  other  duty,  the  right  to  bring  an  action  for  foreclosure  will 
be  statute  barred  and  extinguished  (/). 

§  1029.  These  may  suffice  as  illustrations  of  sorhe  of  the  more 
important  doctrines  of  courts  of  equity  in  regard  to  mortgages  of  lands, 
many  of  which  are  founded  upon  principles  of  justice  so  universal,  as 
equally  to  commend  themselves  to  the  approbation  of  a  Eoman  prsetor 

(d)  Ante,  §  §  494,  636,  636. 

(dd)  Eeal  Property  Limitation  Act,  1887  (3  &  4  Will.  4,  c.  27),  s.  28 ;  Beal  Property 
Limitation  Act,  1874  (37  &  38  Vict.  c.  57),  s.  7.  An  acknowledgment  by  one  of  two 
joint  mortgagees  and  truateea  is  inoperative.  Richardson  v.  Young,  L.  E.  6  Ch.  478. 
Previously  the  court  acted  by  analogy  to  the  Statutes  of  Limitation  (see  Cholmondeley 
V.  Clinton,  2  Jac.  &  W.  1;  4  Bligh,  N.  S.  1 ;  Raffety  v.  King,  1  Keen,  601). 

(e)  Raffety  v.  King,  1  Keen,  601. 

(/)  Eeal  Property  Limitation  Act,  1837  (3  &  4  Will.  4,  ^.  28) ;  Eeal  Property  Limi- 
tation Act,  1874  (37  &  38  Vict.  c.  57),  s.  9. 


§  1028a — 1032.]  mortgages.  427 

and  of  a  modem  judge;  administering  the  law  of  Continental  Europe 
ex  sequo  et  bono. 

§  1030.  Let  us  now  pass  to  a  brief  consideration  of  the  doctrines 
of  equity,  applicable  to  mortgages  and  pledges  of  personal  property. 
A  mortgage  of  personal  property  differs  from  a  pledge.  The  former 
is  a  conditional  transfer  or  conveyance  of  the  property  itself ;  and,  if  the 
condition  is  not  duly  performed,  the  whole  title  vests  absolutely  at  law 
in  the  mortgagee,  exactly  as  it  does  in  the  case  of  a  mortgage  of  lands. 
The  latter  only  passes  the  possession,  or,  at  most,  a  special  property  to 
the  pledgee,  with  a  right  of  retainer,  until  the  debt  is  paid,  or  the  other 
engagement  is  fulfilled.  The  difference  between  them  was  well  stated 
by  a  learned  judge,  in  Jones  v.  Smith  (g).  "  A  mortgage  is  a  pledge  and 
more ;  for  it  is  an  absolute  pledge  to  become  an  absolute  interest,  if  not 
redeemed  at  a  certain  time.  A  pledge  is  a  deposit  of  personal  effects, 
not  to  be  taken  back,  but  on  payment  of  a  certain  sum,  by  express 
stipulation,  or  the  course  of  trade  to  be  a  lien  upon  them. " 

§  1031.  In  mortgages  of  personal  property,  although  the  prescribed 
condition  has  not  been  fulfilled,  there  exists,  as  in  mortgages  of  land, 
an  equity  of  redemption,  which  may  be  asserted  by  the  mortgagor,  if 
he  brings  his  action  to  redeem  within  a  reasonable  time  {h).  There  is, 
however,  a  difference  between  mortgages  of  land  and  mortgages  of  per- 
sonal property,  in  regard  to  the  rights  of  the  mortgagee,  after  a  breach 
of  the  condition.  In  the  latter  case,  although  the  mortgagor  could 
obtain  foreclosure  (i),  he  could,  upon  due  notice,  as  a  general  rule  sell 
the  personal  property  mortgaged,  as  he  could  under  the  civil  law;  and 
the  title,  if  the  sale  be  bond  fide  made,  will  vest  absolutely  in  the 
vendee  (fe).  And  it  makes  no  difference,  whether  the  personal  property 
mortgaged  consists  of  goods  or  of  stock  or  of  personal  annuities  (I).  But 
where  certificate  of  shares  or  policies  of  life  insurance  are  deposited  with- 
out a  memorandum  the  remedy  is  foreclosure  and  not  sale  (to).  There 
is  no  statute  applicable  to  limit  the  right  of  the  mortgagee  in  point  of 
time  to  enforce  his  remedy  by  foreclosure  where  the  property  mortgaged 
is  personalty  (w). 

§  1032.  In  cases  of  pledges,  if  a  time  for  the  redemption  be  fixed 
by  the  contract,  still  the  peldgor  may  redeem  afterwards,  if  he  applies 
within  a  reasonable  time.  But  if  no  time  is  fixed  for  the  payment,  the 
pledgor  has  his  whole  life  to  redeem,  unless  he  is  called  upon  to  redeem 

ig)  2  Vea.  Jun.  378.     See  also  Carter  v.  Wake,  i  Ch.  D.  605. 
{h)  See  Kemp  v.    Westbrook,  1  Ves.   Sen.  278;   Charter  v.    Watson,   [1899]   1 
Ch.  176. 

(t)  Sadler  v.  Worley,  [1894]  2  Ch.  170. 

(k)  Tucker  v.   Wilson,  1  P.  Will.  261;  Lockwood  v.  Ewer,  9  Mod.  275;  s.c.  2 

Atk.  303. 

(l)  Slubbs  v.  Slater,  [1910]  1  Ch.  682.  That  on  a  mortgage  of  stocks,  the  iden- 
tical stocks  must  be  returned,  see  Langton  v.  Waite,  6  Bq.  165,  i  Ch.  402. 

(m)  Harrold  v.  Plenty,  [1901]  2  Ch.  314. 

In)  London  and  Midland  Bank  v.  Mitchell,  [1899]  2  Ch.  161. 


428  EQUITY   JURISPRUDENCE.  [CH.    XXVI; 

by  the  pledgee ;  and  in  case  of  the  death  of  the  pledgor  without  such  a 
demand,  his  personal  representatives  may  redeem  (o).  Generally 
speaking,  an  action  to  redeem  will  not  lie  on  the  behalf  of  the  pledgor 
or  his  representatives,  as  his  remedy  upon  a  tender  is  at  law.  But  if 
any  special  ground  is  shown,  or  there  has  been  an  assignment  of  the 
pledge,  an  action  will  lie  (p). 

§  1033.  On  the  other  hand,  the  pledgee  might,  according  to  Glan- 
ville,  at  any  time  bring  an  action  at  the  common  law  to  compel  the 
pledgor  to  redeem  by  a  given  day ;  and,  if  he  did  not  then  redeem,  he 
was  for  ever  foreclosed  of  his  right  (g).  But  the  equitable  remedy  is  a 
sale  (?•).  It  has  been  also  said,  that  the  pledgee  may,  after  the  time  for 
redemption  has  passed,  upon  due  notice  given  to  the  pledgor,  sell  the 
pledge  without  a  judicial  decree  of  sale  (s). 

§  1034.  There  is  another  consideration  applicable  to  cases  of  mort- 
gages and  pledges  of  personal  property,  which  does  not  apply,  or  at- 
least  is  not  so  cogent,  in  cases  of  mortgages  of  land.  The  latter  pass 
by  formal  conveyances;  the  former  may  be  transferred  by  the  mere 
change  of  possession.  A  subsequent  advance  made  by  a  mortgagee  or 
a  pledgee  of  chattels  would  attach  by  taxiking  to  the  property  in  favour 
of  such  mortgagee,  when  a  like  tacking  might  not  be  allowed  in  cases 
of  real  estate.  Thus,  for  instance,  in  the  case  of  a  mortgage  of  real 
estate,  the  mortgagee  cannot,  as  we  have  seen,  compel  the  mortgagor, 
upon  an  application  to  redeem,  to  pay  any  debts  subsequently  con- 
tracted by  him  with,  or  advances  made  up  to  him  by,  the  mortgagee, 
unless  such  new  debts  or  advances  are  distinctly  agreed  to  be  made  upon 
the  security  of  the  mortgaged  property  (t).  But  in  the  case  of  a  mort- 
gage or  pledge  of  chattels,  the  general  rule,  or  at  least  the  general  pre- 
sumption, seems  the  other  way.  For  it  has  been  held,  that,  in  such  a 
case,  without  any  distinct  proof  of  any  contract  for  that  purpose,  the 
pledge  may  be  held,  until  the  subsequent  debt  or  advance  is  paid,  as 
well  as  the  original  debt.  The  ground  of  this  distinction  is,  that  he  wiio 
•seeks  equity  must  do  equity;  and  the  plaintiff,  seeking  the  assistance 
of  the  court,  ought  to  pay  all  the  moneys  due  tc  the  creditor,  as  it  is 
natural  to  presume  that  the  pledgee  would  not  have  lent  the  new  sum 
but  upon  the  credit  of  the  pledge,  which  he  had  in  his  hands  before  (u). 
The  presumption  may,  indeed,  be  rebutted  by  circumstances;  but,  un- 

(o)  Story  on  Bailments,  §  §  308,  345,  346,  348;  Glanville,  Lib.  10,  cap.  6,  8; 
Vanderzee  v.  Willis,  3  Bro.  C.  C.  21. 

(p)  Kemp  V.  Westbraok,  1  Ves.  Sen.  278;  Jones  v.  Smith,  2  Ves.  Jun.  872. 

(g)  Glanville,  Lib.  10,  cap.  8;  1  Cain.  Gas.  Err.  204,  205. 

(r)  Carter  v.  Wake,  4  Ch.  D.  605. 

(«)  Pothonier  v.  Dawson,  Holt  N.  P.  383;  Nicholson  v.  Hooper,  4  Myl.  &  Cr.  179; 
Frgot  V.  Cubley,  15  C.  B.  N.  S.  701. 

(t)  Ante,  §  §  417,  418;  Matthews  v.  Cartwright,  2  Atk.  347;  Brace  v.  Duchess  of 
Marlborough,  2  P.  Will.  491,  492,  494;  Shepherd  v.  Titley,  2  Atk.  352,  354;  Anon., 
2  Ves.  662;  Lowthian  v.  Hasel,  3  Bro.  C.  C.  162;  Jones  v.  Smith,  2  Ves.  Jun.  376, 
378;  Ex  parte  Knott,  11  Ves.  617. 

(u)  Demaindray  v.  Metcalf,  Prec.  Ch.  419;  Vanderzee  v.  Willis,  3  Bro.  C.  C.  21 


§  1033— 1035a.]  mortgages.  42& 

less  it  is  rebutted,  it  will  generally,  in  favour  of  the  lien,  stand  for  verity 
against  the  pledgor  himself,  although  not  against  his  creditors,  or  against 
subsequent  purchasers  (a;). 

§  1035.  It  is  not  improbable,  that  this  doctrine,  respecting  mort- 
gages and  pledges  of  chattels  being  held  as  security  for  subsequent  debts- 
and  advances,  was  borrowed  from  the  civil  law,  although  it  is  appUed 
with  some  modifications  in  the  equity  jurisprudence  of  England.  In 
the  civil  law  (as  we  have  already  seen),  the  mortgagor  or  pledgor  could 
not  redeem,  without  discharging  all  the  other  debts  which  he  then 
owed  to  the  pledgee ;  with  the  saving,  however,  in  favour  of  the  rights 
of  other  creditors  and  purchasers  (y). 

§  1035a.  Where  property  which  can  only  reach  the  hands  of  the 
beneficiary  in  the  shape  of  money  vested  in  a  trustee,  and  the  beneficial 
interest  is  mortgaged  by  the  beneficial  owner,  the  mortgagee  can  acquire 
a  better  title  than  his  assignor  conveyed  to  him  by  priority  of  notice  («). 
This  doctrine  is  apphcable  to  absolute  assignments  as  well  as  to  assign- 
ments by  way  of  mortgage  and  the  general  consideration  of  the  subject 
will  be  discussed  in  the  next  chapter. 

{x)  Demaindray  v.  Metcalf,  Prec.  Ch.  419. 

(,y)  Ante,  §  1010,  and  note;  Cod.  Lib.  8,  tit.  27,  1.  1. 

(z)  Dearie  v    Hall,  Loveridge  v.  Cooper,  3  Euss.  1. 


430  EQUITY    J0EISPRUDENCB.  [CH.    XXVII. 


CHAPTER    XXVII. 


ASSIGNMENTS. 


§  1036.  In  the  next  place,  let  us  pass  to  the  consideration  of  Assign- 
ments of  real  and  personal  property  upon  special  trusts.  The  most 
important  and  extensive  of  this  class  of  trusts  is  that  which  embraces 
general  assignments  by  insolvents  and  other  debtors  for  the  discharge 
of  their  debts,  sometimes  with  priorities  and  preferences  of  particular 
creditors,  and  sometimes  with  an  equality  of  rights  among  all  the  credi- 
tors. The  question  of  the  validity  of  such  conveyances,  and  under  what 
circumstances  they  are  deemed  fraudulent,  or  bona  fide,  has  been 
already,  in  some  measure,  considered  under  the  head  of  constructive 
fraud  (a).  In  general,  it  may  be  stated,  that  such  priorities  and  prefer- 
ences are  not  deemed  fraudulent  or  inequitable ;  and  even  a  stipulation 
on  the  part  of  the  debtor,  in  such  an  assignment,  that  the  creditors 
taking  under  it  shall  release  and  discharge  him  from  all  their  further 
claims  beyond  the  property  assigned,  will  (it  seems)  be  valid,  and  bind- 
ing on  such  creditors. 

§  1036a.  In  order  to  entitle  the  creditors,  named  in  a  general 
assignment  for  the  benefit  of  creditors,  to  take  under  it,  it  is  not  neces- 
sary that  they  should  be  formal  parties  thereto  (b).  It  will  be  sufficient, 
if  they  have  notice  of  the  trust  in  their  favour  and  they  assent  to  it;  and, 
if  there  be  no  stipulation  for  a  release,  or  any  other  condition  in  it, 
which  may  not  be  for  their  benefit,  their  assent  will  be  presumed,  until 
the  contrary  appears  (c).  Creditors'  trust  deeds  are  now  subject  to  the 
provisions  of  the  Deeds  of  Arrangement  Act,  1914  (4  &  5  Geo.  V.  c.  47). 
They  must  be  registered  with  the  Eegistrar  of  Bills  of  Sale  within  seven 
clear  days  after  the  first  execution  thereof  by  the  debtor  or  any  creditor, 
or  if  first  executed  abroad  within  seven  clear  days  after  the  time  at  which 
it  would  in  the  ordinary  course  of  post,  arrive  in  England,  if  posted 
within  one  week  after  the  execution  thereof.  And  it  must  receive  the 
assent  in  writing  of  a  majority  in  number  and  value  of  the  creditors  of 
the  debtor,  the  only  penalty  on  the  creditor  being  that  his  neglect  to 
express  his  dissent  in  writing  after  receiving  notice  in  writing  of  the 

(a)  Ante,  §  §  349,  369,  370,  378,  379;  Estwiek  v.  Caillaud,  6  T.  B.  420;  Holbird  v. 
Anderson,  5  T.  E.  235;  Meux  v.  Howell,  4  East  1;  Rex  v.  Watson,  3,  Price  6;  Small 
V.  Marwood,  9  B.  &  C.  300;  Pickstock  v.  Lyster,  3  M.  &  S.  371. 

ib)  Garrard  v  Lord  Lauderdale,  3  Sim.  1;  2  Euss.  &  M.  451;  Acton  v.  Wood- 
gate,  2  Myl.  &  K.  492. 

(c)  In  re  Baber's  Trust,  L.  E.  10  Eq.  554 ;  post,  §  1045. 


§    1036—1039.]  ASSIGNMENTS.  431 

execution  of  the  instrument,  is  to  preclude  him  from  avaihng  himself 
of  the  assignment  as  an  available  act  of  bankruptcy. 

§  1037.  The  trusts,  arising  under  general  assignments  for  the  benefit 
of  creditors,  were,  in  a  peculiar  sense,  the  objects  of  equity  jurisdiction. 
But  the  Bankruptcy  Court  is  now  charged  with  the  judicial  administra- 
tion of  the  property  comprised  in  these  assignments  by  the  Deeds  of 
Arrangement  Act,  1914  (  4  &  5  Geo.  v.  c.  47),  s.  23.  And  this  subject 
generally  has  since  the  Bankruptcy  Act,  1914  (4  &  5  Geo.  v.  c.  59), 
lost  much  of  its  importance  considered  as  a  point  of  equity  jurisdiction, 
for  by  s.  1  (d)  of  that  Act,  it  is  provided  that  the  following  {inter  alia) 
should  be  deemed  an  act  of  bankruptcy,  viz.,  that  the  debtor  has  in 
England  or  elsewhere  made  a  conveyance  or  assignment  of  his  property 
to  a  trustee  or  trustees  for  the  benefit  of  his  creditors  generally. 

§  1039.  In  regard  to  particular  assignments  upon  special  trusts, 
there  is  little  to  be  said  which  is  not  equally  applicable  to  all  cases  of 
jurisdiction  exercised  over  general  trusts.  But  courts  of  equity  take 
notice  of  assignments  of  property,  and  enforce  the  rights  growing  out  of 
the  same,  in  many  cases,  where  such  assignments  are  not  recognized 
at  law  as  valid  or  effectual  to  pass  titles.  It  was  a  well-known  rule  of 
the  common  law,  that  no  possibility,  right,  title,  or  thing  in  action  could 
be  granted  to  third  persons.  For  it  was  thought  that  a  different  rule 
would  be  the  occasion  of  muliplying  contentions  and  suits,  as  it  would, 
in  effect,  be  transferring  a  lawsuit  to  a  mere  stranger.  Hence  a  debt, 
or  other  chose  in  action,  could  not  be  transferred  by  assignment,  except 
in  case  of  the  king,  to  whom  and  by  whom,  at  the  common  law,  an 
assignment  of  a  chose  in  action  could  always  be  made ;  for  the  policy  of 
the  rule  was  not  supposed  to  apply  to  the  king  (e).  So  strictly  was  this 
doctrine  construed,  that  it  was  even  doubted  whether  an  annuity  was 
assignable,  although  assigns  were  mentioned  in  the  deed  creating  it  (/). 
And  at  law,  with  the  exception  of  negotiable  instruments,  and  some  few 
other  securities,  this  still  continued  to  be  the  general  rule,  unless  the 
debtor  assented  to  the  transfer;  but  if  he  did  assent,  then  the  right  of 
the  assignee  was  complete  at  law,  so  that  he  might  maintain  a  direct 
action  against  the  debtor  upon  the  implied  promise  to  pay  him  the 
same,  which  resulted  from  such  assent  (g).  But  by  paragraph  5  of 
section  25  of  the  Judicature  Act,  1873,  it  is  provided  that  any  absolute 
assignment  in  writing  (not  purporting  to  be  by  way  of  charge  only)  of 
any  debt  or  other  legal  chose  in  action  of  which  express  notice  in  writing 
shall  have  been  given  to  the  debtor,  trustee,  or  other  person  from  whom 
the  assignor  would  have  been  entitled  to  receive  such  debt  or  chose  in 
action,  shall  be,  and  be  deemed  to  have  been  effectual  in  law  (subject 

(d)  See  Hamilton  v.  Houghton,  2  Bligh  169. 

(e)  Lampet's  Case,  10  Co.  48a;  Prosser  v.  Edmonds,  1  Y.  &  C.  Ex.  481;  Co.  Litt. 
2326,  Butler's  note  (1);  Com.  Dig.  Chancery,  2  H;  Assignment,  D. 

(/)  Co.  Jjitt.  144b,  and  Hargrave's  note  (1);  Co.  Litt.  232b,  Butler's  note  (1). 
(g)  Crowfoot  v.  Gurney,  9  Bing.  372;  Hutchinson  v.  Heyworth,  9  A.  &  E.  375. 


432  EQUITY    JURISPRUDENCE.  [CH.    XXVII. 

to  all  equities  which  would  have  been  entitled  to  priority  over  the  right 
of  the  assignee  if  this  Act  had  not  passed),  to  pass  and  transfer  the  legal 
right  to  such  debt  or  chose  in  action  from  the  date  of  such  notice,  and 
all  legal  and  other  remedies  for  the  same  without  the  concurrence  of 
the  assignor  (h). 

§  1040.  But  courts  of  equity  give  effect  to  assignments  of  interests 
held  in  trust,  and  whether  the  interests  are  contingent  or  in  expectancy, 
including  so  remote  an  interest  as  a  spes  sucoessionis,  whether  they  are 
in  real  or  in  personal  estate,  as  well  as  to  assignments  of  choses  in 
action  (i).  Every  such  assignment  is  considered  in  equity,  as  in  its 
nature  amounting  to  a  declaration  of  trust  and  to  an  agreement  to  permit 
the  assignee  to  make  use  of  the  name  of  the  assignor,  in  order  to  recover 
the  debt,  or  to  reduce  the  property  into  possession  (k).  Contingent 
rights  and  interests  were  not  ordinarily  assignable  at  law ;  and  yet  they 
might  sometimes  be  assigned  at  law  if  coupled  with  some  present 
interest  (l).  So,  at  law,  such  rights  and  interests  might  pass  by  way  of 
estoppel,  by  fine  or  recovery  but  not  otherwise  (■m).  And  by  the  8  &  9 
Vict.  c.  106,  s.  6,  a  contingent,  an  executory,  and  a  future  interest,  and 
a  possibility  coupled  with  an  interest,  in  any  tenements  or  hereditaments 
of  any  tenure  may  be  disposed  of  by  deed.  But  the  reach  of  this  doc- 
trine at  law  falls  far  short  of  that  now  entertained  in  equity.  To 
make  an  assignment  valid  at  law,  the  thing  which  is  the  subject  of  it 
must  have  actual  or  potential  existence  at  the  time  of  the  grant  or 
assignment  (o).  But  courts  of  equity  will  support  assignments  not  only 
of  choses  in  action,  and  of  contingent  interests  and  expectancies,  but 
also  of  things  which  have  no  present  actual  or  potential  existence,  but 
rest  in  mere  possibility ;  as  for  example  "  added  or  substituted  machinery 
implements  and  things  "  fixed  or  placed  in  or  about  a  mill,  or  future 
book  debts  (p).  And  the  proprietary  rights  of  the  parties  when  the 
property  becomes  tangible,  are  fixed  by  reference  to  the  antecedent 
contract,  for  equity  looks  upon  that  as  done  which  has  been  agreed  to 
be  done  (g). 

(h)  As  to  the  effect  of  this,  see  Brioe  v.  Bannister,  3  Q.  B.  D.  569;  Buck  v.  Rob- 
son,  3  Q.  B.  D.  686.  It  should  be  observed  that  whereas  a  verbal  assignment  is  good 
in  equity,  under  this  Act  writing  is  necessary. 

(»)  Fearne  on  Cont.  Eem.  by  Butler,  548,  660  (7th  edit.);  Bum  v.  Carvalho,  i 
Myl.  &  Cr.  690;  In  re  Lind,  Industrials  Finance  Syndicate,  Ltd.  v.  Lind,  [1915]  3 
Ch.  345. 

{k)  Co.  Litt.  232  b,  Butler's  note;  Durham  Bros.  v.  Robertson,  [1898]  1  Q.  B. 
765. 

(;)  Shep.  Touch.  238,  239,  322;  Arthur  v.  Bokenham,  11  Mod.  162;  Com.  Dig. 
Assignment,  A.,  c.  3. 

(to)  Doe  d.  Christmas  v.  Oliver,  10  B.  &  Cress,  181;  Pearne  on  Cont.  Bern.  ch.  6, 
§  v.,  p.  365 

(o)  See  Lunn  v.  Thornton,  1  C.  B.  379;  Fetch  v.  Tutin,  15  M.  &  W.  110. 

(p)  Holroyd  v.  Marshall,  10  H.  L.  C.  191;  Tailby  v.  Official  Receiver,  13  App. 
Cas.  523. 

(q)  In  re  Lind,  Industrials  Finance  Synd.  v  Lind,  [1915]  1  Ch.  744;  [1915] 
2  Ch.  346. 


§  1040,  1040a.]  ASSIGNMENTS.  433 

§  1040a.  In  the  civil  law,  and  in  the  jurisprudence  of  the  modern 
commercial  nations  of  continental  Europe,  there  does  not  seem  to  have 
been  any  foundation  for  such  an  objection  to  the  assignment  of  debts ; 
for  all  debts  were  from  an  early  period  allowed  to  be  assigned,  if  not 
formally,  at  least  in  legal  effect;  and  for  the  most  part,  if  not  in  all 
cases,  they  may  now  be  sued  for  in  the  name  of  the  assignee  (r).  The 
Code  of  Justinian  says,  "  Nominis  autem  venditio  "  (distinguishing  be- 
tween the  sale  of  a  debt  and  the  delegation  or  substitution  of  one  debt 
for  another  or  for  the  same  debt)  "  et  ignorante,  vel  invito  eo,  adversus 
quem  actiones  mandantur,  oontrahi  solet  "  (s).  And  Heineccius,  after 
remarking  that  bills  of  exchange  are  for  the  most  part  drawn  payable 
to  a  person  or  his  order,  says,  that  although  this  form  be  omitted,  yet 
an  indorsement  thereof  may  have  full  effect,  if  the  laws  of  the  parti- 
cular country  respecting  exchange  do  not  specially  prohibit  it;  because 
an  assignment  thereof  may  be  made  without  the  knowledge  and  against 
the  will  of  the  debtor ;  and  he  refers  to  the  passage  in  the  Code  in  proof 
of  it  (t).  But  he  adds  (which  is  certainly  not  our  law),  that  if  the  bill 
be  drawn  payable  to  the  order  of  Titius,  it  is  not  to  be  paid  to  Titius, 
but  to  his  indorsee.  "  Tunc  enim  Titio  solvi  non  potest,  sed  ejus  indor- 
satario  "  (w).  The  same  general  doctrine  as  to  the  assignability  of  bills 
of  exchange,  payable  to  a  party,  but  not  to  his  order,  is  affirmed  in  the 
ordinajice  of  France  of  1673  (art.  12),  as  soon  as  the  transfer  is  made 
known  to  the  drawee  or  debtor  (cc).  Indeed,  the  like  doctrine  prevails 
now  in  France,  not  only  in  cases  of  bills  of  exchange,  but  of  contracts 
generally ;  so  that  the  assignee  may  now  sue  on  them  in  his  own  name 
after  the  assignment,  subject,  however,  to  all  the  equities  subsisting 
between  the  parties  before  and  at  the  time  when  the  debtor  has  notice 
of  the  assignment  (y). 

(r)  Pothier  has  stated  the  old  French  law  upon  this  subject  (which  does  not  in 
substance  probably  differ  from  that  of  the  other  modern  States  of  continental  Europe) 
in  very  explicit  terms,  in  his  treatise  on  the  Contract  of  Sale,  of  which  an  excellent 
translation  has  been  made  by  L.  S.  Gushing,  Esq.  See  also  Troplong  des  Privil,  and 
Hypoth.  Tome  1,  un  340  to  343;  Troplong  de  la  Vente  un  879  to  882,  un  906,  918; 
Code  Civ.  Arts.  1689  to  1692,  2112. 

(«)  Cod.  Lib.  8,  tit.  42,  1.  1;  1  Domat,  B.  i,  tit.  4,  §  §  3,  4. 

(t)  Heinecc.  de  Camb.  cap.  3,  §  8;  id.  cap.  4,  §  §  21  to  26.  Heineccius,  in  a  note, 
says,  that  in  Pranoonia  and  Leipsic,  no  assignment  is  of  any  validity,  if  the  formulary 
of  its  being  payable  to  order  is  omitted.  The  present  law  of  Prance  is  the  same,  so 
far  as  the  general  negotiability  of  bilk  is  concerned,  and  to  give  them  circulation,  un- 
affected by  any  equities  between  the  payee  and  the  debtor.  Pardessus,  Droit  Comm., 
Tom.  2,  art.  339,  p.  360;  Delvincourt,  Instit.  Droit  Comm.,  Tom.  1,  Liv.  1,  tit.  7,  Pt. 
2,  pp.  114,  115.  Delvincourt  says  that  the  right  of  a  simple  bill  (not  payable  to  order) 
is  transferable  only  by  an  act  of  transfer  made  known  to  the  debtor.  See  also  Merlin, 
Repert.  Lettre  et  Billet  de  Change,  §  §  4,  8,  pp.  196,  252  (edit.  1827). 

(«)  Heinecc.  de  Camb.  cap.  2,  §  8. 

(x)  Juosse,  sur  I'Ordon.  1673,  art.  30,  p.  123.  See  also  Story  on  Bills  of  Exchange, 
§  19 ;  Greenleaf  on  Evid.  §  §  172,  190. 

iy)  Pardessus,  Droit  Comm.,  Tom.  2,  art.  313;  Troplong  de  Priv.  et  Hypoth., 
Tom.  1 ;  Troplong  de  la  "Vente,  nn.  879  to  913 ;  Code  Civil  of  France,  art.  1689  to  1693 ; 
id.  art.  2112;  id.  art.  1295;  Locre,  Esprit  du  Code  de  Comm.,  Tom.  1,  Liv.  1,  tit.  8, 
p.  342. 

B.J.  28 


434  EQUITY    JUEISPEUDENCE.  [CH.    XXVI. 

§  1040b.  There  are,  however,  certain  cases,  in  which  assignments 
will  not  be  upheld  either  in  equity  or  at  law,  as  being  against  the  prin- 
ciples of  public  policy.  Thus,  for  example,  the  full  pay,  or  half-pay  of 
an  officer  in  the  army  or  navy,  is  not,  upon  principles  of  public  policy, 
assignable,  either  by  the  party,  or  by  operation  of  law  («).  For  officers, 
as  well  upon  half-pay  as  full  pay,  are  liable  at  any  time  to  be  called  into 
service ;  and  it  has  been  well  remarked,  that  emoluments  of  this  sort 
are  granted  for  the  dignity  of  the  state,  and  for  the  decent  support  of 
those  persons  who  are  engaged  in  the  service  of  it.  It  would,  therefore, 
be  highly  impolitic  to  permit  them  to  be  assigned;  for  persons,  who  are 
liable  to  be  called  out  in  the  service  of  their  country  ought  not  to  be 
taken  from  a  state  of  poverty.  And  it  has  been  added,  that  it  might  as 
well  be  contended,  that  the  salaries  of  the  judges,  which  are  granted  to 
support  the  dignity  of  the  State  and  the  administration  of  justice,  may 
be  assigned  (a).  The  fact,  that  half-pay  is  intended  in  part  as  a  reward 
for  past  services,  does  not,  in  any  respect,  change  the  application  of  the 
principle;  for  it  is  also  designed  to  enable  the  party  to  be  always  in 
readiness  to  return  to  the  public  service,  if  he  shall  at  any  time  oe 
required  so  to  do  (b).  The  same  doctrine  has  been  applied  to  the  civil 
service,  where  the  Government  may  command  the  future  services  of 
the  party  (c).  But  a  retiring  allowance  or  gratuity,  where  the  party 
cannot  be  called  upon  to  perform  further  duties,  or  receives  the  amount 
as  a  reward  for  past  services  may  be  aliened  (d).  In  spite  of  the  doubt 
expressed  in  previous  editions,  there  seems  no  reason  why  an  annuity 
payable  during  the  pleasure  of  the  Crown  should  not  be  assignable  so 
long  as  it  is  continued.  Obviously  the  terms  of  the  grant  preclude  any 
remedy  against  the  Crown  or  its  agents,  but  the  grantee  may  be 
restrained  from  receiving  it  (e).  Alimony  has  been  held  to  be  non- 
assignable, but  upon  a  different  principle,  namely,  that  it  is  not  in  the 
nature  of  property,  but  an  allowance  to  provide  for  the  daily  main- 
tenance of  the  wife  (/). 

§  1040c.  An  assignment  of  a  bare  right  to  bring  aa  action  for  a  fraud, 
committed  upon  the  assignor,  wiU  be  held  void,  as  contrary*  to  public 
poUcy,  and  as  savouring  of  the  character  of  champerty,  of  which  we 
shall  presently  speak  (gr).  So,  a  mere  right  of  action  for  a  breach  of 
trust  for  the  like  reason,  is  not  assignable  (h).  On  the  other  hand  a  con- 
veyance of  property  carries  with  it  the  full   proprietary   right    of   the 

(«)  Stone  V.  LidderdaXe,  2  Anstr.  533. 

(a)  Davis  v.  Duke  of  Marlborough,  1  Swanst.  at  p.  79. 

(b)  Stone  v.  Lidderdale,  2  Anst.  533. 

(c)  Hill  V.  Paul,  8  Ch.  &  P.  296;  Wells  v.  Foster,  8  M.  &  W.  149. 

(d)  Spooner  v.  Payne,  1  De  G.  M.  &  G.  202;  Knight  v.  Bulkeley,  27  L.  J.  Ch. 
692;  15  Jur.  N.  S.  817;  Willcock  v.  Terrell,  3  Ex.  D.  323. 

(e)  Knight  v.  Bulkeley,  27  L.  J.  Ch.  692;  15  Jur.  N.  S.  817. 
(/)  In  re  Robinson,  27  Ch.  D.  160. 

(g)  Prosser  v.  Edmonds,  1  Y.  &  C.  Ex.  481;  post,  §  1048. 
(h)  Hill  v.  Boyle,  L.  E.  i  Eq.  260. 


§  1040b — 1045.]  ASSIGNMENTS.  435 

grantor  to  perfect  his  title  even  if  it  involves  the  bringing  of  an  action  (i). 
But  the  purchase  must  be  bond  fide,  and  not  a  mere  cloak  to  purchase 
a  right  of  action  (fc).  The  trustee  in  bankruptcy  has  a  statutory  right  to 
sell  a  res  litigiosa  (l). 

§  1041.  The  distinction  between  the  operation  of  assignments  at 
law,  and  the  operation  of  them  in  equity,  may  be  very  familiarly  shown 
by  a  few  illustrations,  derived  from  oases  of  bailments  and  consign- 
ments. In  the  common  case,  where  money  or  other  property  is  deliv- 
ered by  a  bailor  to  B.  for  the  use  of  C,  or  to  be  delivered  to  C,  the 
acceptance  of  the  bailment  amounts  to  an  express  promise  from  the 
bailee  to  the  bailor,  to  deliver  or  pay  over  the  property  accordingly.  But 
it  was  settled  that  the  person,  for  whose  use  the  money  or  property  is 
so  delivered  could  not  maintain  an  action  at  law  therefore  against  the 
bailee,  without  some  further  act  or  assent  on  the  part  of  the  bailee, 
establishing  a  privity  between  them  (m).  But  it  is  certain  that  a  remedy 
would  lie  in  equity  under  the  like  circumstances  (w).  It  may  be  added 
that  no  writing  is  necessary  to  the  validity  of  an  equitable  assign- 
ment (o).  Writing  is  indeed  necessary  if  the  assignment  is  to  operate 
under  par.  6  of  section  25  of  the  Judicature  Act,  1873,  entitling  the 
assignee  to  sue  in  his  name,  without  making  the  assignor  a  party.  An 
assignment  which  fails  to  comply  with  the  formalities  of  the  statute  may 
yet  be  operative  under  the  general  rule ;  but  here  the  assignor  must  be  a 
party  to  the  proceedings  (p). 

§  1045.  There  is  another  class  of  cases,  namely,  those  where  the 
question  may  arise  of  an  absolute  appropriation  of  the  proceeds  of  an 
assignment  or  remittance,  directed  to  be  paid  to  particular  creditors, 
in  which  courts  of  equity,  like  courts  of  law,  will  not  deem  the  appro- 
priation to  the  creditors  absolute,  until  the  creditors  have  notice  thereof, 
and  have  assented  thereto.  For,  until  that  time,  the  mandate  or  direc- 
tion may  be  revoked  or  withdrawn,  and  some  other  appropriation  made 
by  the  consignor  or  remitter  of  the  proceeds  (q).  But  if,  upon  notice, 
the  creditors  should  assent  thereto,    and    no   intermediate    revocation 

(t)  Dickinson  v.  Burrell,  L.  E.  1  Eq.  337 ;  Fitzroy  v.  Cave,  [1905]  2  E.  B.  364. 

(fc)  De  Hoghton  v.  Money,  L.  E.  2  Ch.  164. 

(l)  Secar  v.  Lawson,  15  Ch.  D.  426;  Gury  v.  Churchill,  40  Ch.  D.  481, ' 

(to)  Williams  v.  Everett,  14  East,  582. 

(m)  Ex  parte  South,  3  Swanst.  392;  Burn  v.  Carvalho,  4  M.  &  Cr.  690,  where  the 
plaintiff  having  failed  at  law  (4  B.  &  Ad.  382 ;  1  A.  &  E.  888)  succeeded  in  equity.  It 
is  really  "  pedantry  to  refer  to  authorities  " — per  Lord  Macnaghten,  William  Brandt's 
Sons  d  Co.  V.  Dunlop  Rubber  Co.,  [1905]  A.  C.  454. 

(o)  Gurnell  v.  Gardner,  4  Giff.  626. 

(p)  Durham  Brothers  v.  Robertson,  [1898]  1  Q.  B.  765 ;  William  Brandt's  Sons  i 
Co.  v.  Dunlop  Rubber  Co.,  [1906]  A.  C.  454. 

(g)  Scott  v.  Porcher,  3  Meriv.  662 ;  Ex  parte  Hall,  10  Ch.  D.  615 ;  Wallwyn  v. 
Coutts,  3  Meriv.  707,  708;  s.o.  3  Sim.  14;  Garrard  v.  Lord  Lauderdale,  4  Euss.  & 
Myl.  451;  Gaskell  v.  Gaskell,  2  Y.  &  Jerv.  502;  Maber  v.  Hobbs,  2  Y.  &  Jerv.  327; 
Clegg  v.  Reas,  L.  E.  7  Ch.  71;  ante,  §  §  972,  1086a.  Acquiescence,  e.g.,  refraining 
to  sue,  as  stipulated  in  deed,  may  have  the  same  effect  as  direct  assent.  In  re  Baber's 
■Trusts.  L.  E.  10  Bq.  554. 


436  EQUITY   JURISPRUDENCE.  [CH.    XXVII. 

should  have  been  made  by  the  assignor  or  remitter;  there,  in  equity, 
the  assignee  or  mandatary  will  be  held  bound  to  the  creditors,  and  they 
may  maintain  a  bill  to  enforce  a  due  perfoirmance  of  the  duty.  For, 
although  the  assignee  or  mandatary  has  a  perfect  right,  in  such  a  case, 
to  refuse  the  trust;  yet  he  cannot  act  under  the  mandate,  and  receive 
the  money,  goods  or  proceeds,  and  hold  them  discharged  from  the  duty 
thus  created.  The  property  is  in  his  hands,  clothed  with  the  duty,  by 
the  act  of  parties,  competent  to  create  and  establish  it;  and  his  assent 
is  not,  in  strictness,  necessary  to  give  validity  to  it  in  equity  (r). 

§  1047.  The  assignee  takes  the  property  assigned,  subject  to  all 
equities  existing  between  the  assignor  and  his  debtor  or  trustee  at  the 
date  of  the  assignment  (s) ;  unless  there  is  a  contract  varying  the  general 
rule  (i).  But  the  assignee  may  obtain  a  better  title  than  his  assignor 
possessed.  The  doctrine  is  only  applicable  where  there  is  a  debt  or  where 
the  fund  "  can  only  reach  the  hands  of  the  beneficiary  or  assignor  in 
the  shape  of  money"  (u).  It  has  no  application  where  the  property 
conveyanced  is  land  (w).  The  rule,  it  cannot  properly  be  called  a  prin- 
ciple, established  by  Dearie  v.  Hall,  and  Loveridge  v.  Cooper  (x),  is 
that  when  there  are  successive  conveyances  to  separate  parties  without 
notice  of  the  title  of  a  prior  assignee  {y),  the  priority  of  the  assignees 
inter  se  is  regulated  by  the  date  at  which  the  debtor  or  trustee  (2)  re- 
ceives notice  of  the  assignee's  title.  It  seems  clear  that  the  rule  in 
Dearie  v.  Hall  and  Loveridge  v.  Cooper  cannot  be  questioned  at  the 
present  day,  but  the  grounds  upon  which  the  decision  was  based  have 
since  met  with  scant  courtesy  (a).  It  becomes  necessary,  therefore,  to 
examine  the  working  of  the  rule.  As  between  assignor  and  assignee  the 
title  of  the  assignee  is  complete  by  the  assignment,  be  it  a  trust  fund  (b) 
or  a  debt  (c),  and  whether  voluntary  or  for  value  (d).  The  trustee  or 
debtor  may  deal  with  the  assignor  on  the  footing  that  he  is  entitled  to 
the  fund  or  debt,  until  they  receive  notice  of  an  actual  assignment  (e), 

(r)  Ex  parte  South,  3  Swanst.  392;  Bum  v.  Carvalho,  4  M.  &  Cr.  690;  William 
Brandt's  Sons  <&  Go.  v.  Dunlof  Rubber  Co.,  [1905]  A.  C.  454. 

(s)  GouHenay  v.  Williams,  3  Hare  539,  affd.  15  L.  J.  Ch.  204. 

(t)  In  re  Goy  &  Co.,  Ltd.,  Farmer  v.  Goy  S  Go.,  Ltd.,  [1900]  2  Ch.  149. 

(«)  Per  Lord  Macnaghten,  Ward  v.  Duncombe,  [1893]  A.  C.  369,  390;  Foster  v. 
Cockerell,  3  CI.  &  F.  456;  In  re  Hughes'  Trusts,  2  H.  &  M.  89 ;  Lloyds'  Bank  v.  Pear- 
son, [1901]  1  Ch.  865. 

(w)  In  re  Richards,  Humber  v.  Richards,  45  Ch.  D.  589;  Hopkins  v.  Hemsworth,. 
[1898]  2  Ch.  347;  Taylor  \.  London  and  County  Bank,  [1901]  2  Ch.  231. 

(re)  Dearie  v.  Hall,  Loveridge  v.  Cooper,  3  Euss.  1. 

iy)  Newman  v.  Newman,  28  Ch.  D.  674 ;  In  re  Holmes,  29  Ch.  D.  786. 

(2)  Lloyd  V.  Banks,  L.  E.  8  Ch.  988. 

(a)  Ward  v.  Buncombe,  [1893]  A.  C.  369. 

lb)  Burn  v.  Carvalho,  4  M.  &  Cr,  690. 

(c)  Gorringe  v.  Irwell  India  Rubber  and  Gutta  Percha  Works,  34  Ch.  D.  128. 

(d)  Hughes  v.  Walmesley,  12  Jur.  834)!.;  In  re  Way's  Trusts,  2  De  G.  J.  &  S. 
365. 

(e)  Leslie  v.  Baillie,  2  Y.  &  C.  Ch.  91;  Stocks  v.  Dobson,  i  De  G-.  M.  &  G.  11;; 
Phipps  V.  Lovegrove,  L.  E.  16  Bq.  80;  Shaw  v.  Foster,  L.  E.  5  H.  L.  321. 


§    1047—1049.]  ASSIGNMENTS.  437 

but  the  assignor  cannot  defeat  his  own  grant  and  is  accountable  for  any 
sums  of  money  he  may  receive  (/).  In  Dearie  v.  Hall  and  Loveridge  v. 
Cooper,  one  of  the  grounds  of  the  decision  was  that  the  priority  was  a 
reward  of  superior  diligence,  but  it  has  since  been  held  that  if  a  trustee 
acquired  his  knowledge  of  the  transaction  from  a  perusal  of  a  newspaper 
it  was  sufficient  {g),  and  it  is  difficult  to  distinguish  the  case  of  a  debtor. 
A  clear  verbal  notice  is  sufficient,  but  the  evidence  in  the  ease  of  a  con- 
flict as  to  priorities  is  to  be  scanned  jealously  (h). 

§  1047a..  Before  the  notice  can  be  effectually  given,  there  must  be 
an  actual  debt,  or  the  fund  must  be  in  the  hands  of  trustees  or  effectually 
transferred  to  them  (i).  Notice  to  one  of  several  trustees  (not  being 
himself  an  assignor)  (k)  is  effective  so  long  as  that  trustee  remains  a 
trustee  of  the  fund  (I) ;  but  if  he  dies  the  priority  thus  gained  will  be  dis- 
placed in  favour  of  a  subsequent  assignee  if  he  gives  prior  notice  of  his 
assignment  to  the  then  existing  trustees  (m).  A  priority  once  acquired 
by  notice  to  all  the  trustees  remains  notwithstanding  their  retirement 
or  death,  and  the  appointment  of  new  trustees  (n-). 

§  1048.  It  is  principally  in  cases  of  assignments  that  courts  of 
equity  have  occasion  to  examine  into  the  doctrine  of  champerty  and 
maintenance ;  and  therefore  it  may  be  here  proper  to  glance  at  this  im- 
portant topic.  Champerty  {cam-pi  partitio)  is  properly  a  bargain  be- 
tween a  plaintiff  or  a  defendant  in  a  cause,  caynpum  partire,  to  divide 
the  land  or  other  matter  sued  for  between  them,  if  they  prevail  at  law ; 
whereupon  the  champertor  is  to  carry  on  the  party's  suit  at  his  own 
expense  (o).  Maintenance  (of  which  champerty  is  a  species)  is  properly 
an  officious  intermeddling  in  a  suit,  which  no  way  belongs  to  one,  by 
maintaining  or  assisting  either  party  with  money  or  otherwise,  to  prose- 
cute or  defend  it  (p).  Each  of  these  is  deemed  an  offence  against  public 
justice,  and  punishable  accordingly,  both  at  the  common  law  and  by 
statute,  as  tending  to  keep  alive  strife  and  contention,  and  to  pervert 
the  remedial  process  of  the  law  into  an  engine  of  oppression. 

§  1049.  It  was  chiefly  upon  the  ground  of  champerty  and  mainten- 
ance, that  the  courts  of  common  law  refused  to  recognize  the  assign- 
ment of  debts,  and  other  rights  of  action  and  securities;  although  (as 


(/)  In  re  Patrick,  Bills  v.  Tatham,  [1891]  1  Ch.  82. 

(3)  Lloyd  V.  Banks,  L.  E.  3  Ch.  488. 

(h)  In  re  Tichener,  35  B«av.  317.  Choses  in  action  other  than  trade  debts  "  due 
or  growing  due  "  are  no  longer  within  the  order  and  disposition  clause  :  Bankruptcy 
Act,  1914  (4  &  5  Geo.  V.  0.  59),  3.  38  (c). 

(i)  Buller  v.  Plunket,  1  J.  &  H.  441;  Stephens  v.  Green,  [1895]  2  Ch.  148;  in  re 
Dallas,  [1904]  2  Ch.  385. 

(k)  Browne  V.  Savage,  4  Drew.  635;  In  re  Dallas,  [1904]  2  Ch.  385. 

(l)  Meux  V.  Bell,  1  Hare  73;  Ward  v.  Duncombe,  [1893]  A.  C.  369. 

(m)  Timson  v.  Bamsbottom,  2  Keen,  35;  In  re  Phillips'  Trusts,  [1903]  1  Ch.  183. 

(n)  In  re  Wasdale,  Brittin  v.  Partridge,  [1899]  1  Ch.  163. 

(o)  Sprye  v.  Porter,  7  E.  &  B.  58;  Bees  v.  De  Bernardy,  [1896]  2  Ch.  437. 

(p)  Harris  v.Brisco,  17  Q.  B.  D.  504;  Neville  v.  London  "  Express  "  Newspaper, 
Ltd.,  [1919]  A.  C.  368. 


438  EQUITY    JUHISPEUDBNCE.  [CH.    XXVII. 

we  have  seen)  the  same  doctrine  does  not  prevail  in  equity.  But  still, 
courts  of  equity  are  ever  solicitous  to  enforce  all  the  principles  of  law 
respecting  champerty  and  maintenance ;  and  they  will  not,  in  any  case, 
uphold  an  assignment,  which  involves  any  such  offensive  ingredients  {qi. 
Thus,  for  instance,  courts  of  equity,  equally  with  courts  of  law,  will 
repudiate  any  agreement  or  assignment  made  between  a  creditor  and  a 
third  person,  to  maintain  a  suit  of  the  former,  so  that  they  may  share 
the  profits  resulting  from  the  success  of  the  suit;  for  it  will  be  a  clear 
case  of  champerty  (r).  So,  an  assignment  of  a  part  of  the  subject  of  a 
pending  prize  suit,  to  a  navy  agent,  in  consideration  of  his  undertaking 
to  indemnify  the  assignor  against  the  costs  and  charges  of  the  suit,  will 
be  held  void ;  for  it  amounts  to  champerty,  in  being  the  unlawful  main- 
tenance of  a  suit,  in  consideration  of  a  bargain  for  part  of  a  thing,  or 
some  profit  out  of  it  (s).  The  exceptions  to  the  general  rule  are  of 
certain  peculiar  relations  recognized  by  the  law ;  such  as  that  of  father 
and  son;  or  of  an  heir-apparent;  of  the  husband  of  an  heiress;  or  of 
master  and  servant ;  or  motives  of  charity  (t) ;  and  the  like. 

§  1050.  But  consistently  with  these  principles,  a  party  may  pur- 
chase, by  assignment,  the  whole  interest  of  another  in  a  contract,  or 
security,  or  other  property  which  is  in  litigation,  provided  there  be 
nothing  in  the  contract  which  savours  of  maintenance ;  that  is,  provided 
he  does  not  undertake  to  pay  any  costs,  or  make  any  advances  beyond 
the  mere  support  of  the  exclusive  interest,  which  he  has  so  acquired  (u). 
Thus,  for  example,  it  is  extremely  clear,  that  an  equitable  interest,  under 
a  contract  of  purchase  of  real  estate,  may  be  the  subject  of  sale.  A 
person,  claiming  under  such  an  original  contract,  in  case  he  afterwards 
sells  his  purchase  to  sub-purchasers,  becomes,  in  equity,  a  trustee  for 
the  persons  to  whom  he  so  contrapts  to  sell.  Without  entering  into  any 
covenant  for  that  purpose,  such  sub-purchasers  are  obliged  to  indemnify 
him  from  the  consequence  of  all  acts,  which  he  must  execute  for  their 
benefit.  And  a  court  of  equity  not  only  allows,  but  actually  compels, 
him  to  permit  them  to  use  his  name  in  all  proceedings  for  obtaining  the 
benefit  of  their  contract.  Such  indemnity  and  such  proceedings,  under 
such  circumstances,  are  not  deemed  maintenance.  So  if  there  be  a 
trust  estate  in  lands,  either  actual  or  constructive,  which,  however,  is 
controverted  by  the  trustee,  the  cestui  que  trust  (or  beneficiary)  may, 
nevertheless,  lawfully  assign  it;  and  the  assignee  may,  in  equity,  en- 
force his  rights  to  the  same,  if  the  assignment  does  not,  in  the  sense 
above  stated,  savour  of  maintenance. 


iq)  Reynell  v.  Sprye,  1  De  G.  M.  &  G.  660;  Rees  v.  De  Bernardy,  [1896]  2  Ch. 
437. 

(r)  Hartley  v.  Russell,  2  Sim.  &  St.  244. 

(s)  Stevens  v.  Bagwell,  16  Ves.  156. 

(t)  4  Black.  Comm.  135;  Harm  v.  Briscoe,  17  Q.  B.  D.  504. 

(a)  Harrington  v.  Long,  2  M.  &  K.  590;  Hunter  v.  Daniel,  i  Hare,  420;  Fitzroy 
V.  Gave,  [1905]  2  K.  B.  364. 


§    1050—1053.]  ASSIGNMENTS.  439 

§  1051.  This  doctrine  has  been  fully  recognized  by  Lord  Eldon. 
"  If  G.  and  W.  (the  original  vendees),  during  the  pendency  of  the  suit 
in  the  Exchequer,  sold  the  estate  to  A.  B.,  he  would  have  a  right  in  a 
court  of  equity  to  insist,  as  purchaser  of  the  estate,  that  they  should 
convey  to  him  the  fee-simple,  or  such  title  aiS  they  had.  So  insisting, 
he  claims  no  more  than  they  would  be  entitled  to  claim,  if  they  had  not 
sold  their  equitable  interest.  Haying  sold,  they  become  trustees  of 
that  equitable  interest ;  their  vendee  acquires  the  same  right  which  they 
had,  that  is,  a  right  to  call  on  the  original  vendors  indemnifying  them 
against  all  costs  and  charges  for  the  use  of  their  names,  to  enable 
them  to  execute  the  sub-contrac5t,  by  which  they  have  undertaken  to 
transfer  their  benefits  under  the  primary  contract.  If  I  were  to  suffer 
this  doctrine  to  be  shaken  by  any  reference  to  the  law  of  champerty 
or  maintenance,  I  should  violate  the  established  habits  of  this  court, 
which  has  always  given  to  parties,  entering  into,  a  sub-contract,  the 
benefit  which  the  vendors  derived  from  the  primary  contract  "  (x). 

§  1052.  Upon  the  like  grounds,  where  a  creditor,  who  had  insti- 
tuted proceedings  at  law  and  in  equity  against  his  debtor,  entered 
into  an  agreement  with  the  debtor  to  abandon  those  proceedings,  and 
give  up  his  securities,  in  consideration  of  the  debtor's  giving  him  a 
lien  on  other  securities  in  the  hands  of  another  creditor,  with  authority 
to  sue  the  latter,  and  agreeing  to  use  his  best  endeavours  to  assist 
in  adjusting  his  accounts  with  the  holder,  and  in  recovering  those 
securities ;  it  was  held,  that  the  agreement  was  lawful,  and  not  main- 
tenance; for  there  was  no  bargain,  or  colour  of  bargain,  that  the 
assignee  should  maintain  the  suit,  instituted  in  the  assignor's  name, 
against  such  creditor,  having  the  other  securities,  in  consideration  of 
sharing  in  the  profits  to  be  derived  from  that  suit.  The  agreement 
was,  in  effect,  nothing  more  thaji  an  assignment  of  the  equity  of 
redemption  of  the  assignor  in  the  securities  held  by  such  creditor  in 
exchange  for  the  prior  securities  held  by  the  assignee.  The  authority, 
given  to  the  assignee  to  sue  such  creditor,  was  the  common  legal 
provision  in  the  case  of  an  assignment  of  a  debt  or  security  (y). 

§  1053.  Where,  by  articles  of  agreement  for  the  sale  of  an  estate, 
it  was  agreed  between  the  vendor  and  purchaser,  that  the  purchaser, 
bearing  all  the  expenses  of  certain  suits,  commenced  by  the  vendor 
against  an  occupier  for  by-gone  rents,  should  have  the  rents  so  to  be 
recovered,  and  also  any  money  recovered  for  dilapidations,  and  that 
the  purchaser,  at  his  own  expense,  and  indemnifying  the  vendor,  might 
use  the  name  of  the  vendor,  in  any  action  he  might  tiiink  fit  to  com- 
mence therefor;  it  was  held  at  the  common  law,  that  the  agreement 
was  not  void  for  maintenance  or  champerty  («). 

(x)  Per  Lord  Eldon,  in  Wood  v.  Griffith,  1  Swanst.  56. 

iy)  Hartley  v.  Russell,  2  Sim.  &  Stu.  244. 

(z)  Williams  v.  Protheroe,  5  Bing.  309;  s.c.  3  Y.  &  Jerv.  129. 


440  EQUITY    JCRISPRDDKNCE.  [CH.    XXVII. 

§  1054.  Indeed,  there  is  no  principle  in  equity,  which  prevents  a 
creditor  from  assigning  his  interest  in  a  debt  after  the  institution  of 
a  suit  therefor  as  being  within  the  statutes  against  champerty  and 
maintenance.  Such  an  assignment  gives  the  person,  to  whom  it  is 
made,  a  right  to  institute  a  new  proceeding,  in  order  to  obtain  the 
benefit  of  the  assignment.  And  the  proper  mode  of  doing  this  was 
by  the  assignee's  filing  a  supplemental  bill  (if  the  suit  is  still  pending), 
making  the  assignor  and  the  debtor  defendants.  But,  if  the  assign- 
ment contains  an  agreernent,  that  the  assignee  is  to  indemnify  the 
assignor,  not  only  against  all  costs  incurred,  and  to  be  incurred,  with 
reference  to  the  subject-matter  assigned,  but  also  against  all  costs  to 
be  incurred  in  that  suit  for  collateral  objects  and  claims,  totally 
distinct  from  the  subject-matter  assigned,  it  will  be  held  void  for 
maintenance  {a). 

§  1055.  So  strongly  are  courts  of  equity  inclined  to  uphold  assign- 
ments, when  bond  fide  made,  that  even  the  assignment  of  freight  to 
be  earned  in  future,  is  good  in  equity,  and  will  be  enforced  against 
the  party  from  whom  it  becomes  due  (b).  So  an  assignment  of  a  whale- 
ship,  by  way  of  mortgage,  and  of  all  oil,  head-matter,  and  other  cargo 
caught  or  brought  home  on  a  whaling  voyage,  will  amount  to  a  good 
assignment  of  the  future  cargo  of  oil  and  head-matter  obtained  in  the 
voyage  (c).  And,  whenever  an  assignment  is  made  of  a  debt,  or  other 
personal  property,  although  it  is  charged  on  land,  as,  for  example,  a 
pecuniary  legacy  charged  on  land,  the  assignment  will  be  treated  as 
an  assignment  of  money  only,  and,  therefore,  it  will  not  be  affected 
by  the  policy  of  the  registration  laws,  by  which  conveyances  of  the 
interests  in  the  land  are  required  to  be  registered  (d). 

§  1056.  In  courts  of  law,  these  principles  of  courts  of  equity  were, 
even  before  the  Judicature  Act,  1873,  acted  on  to  a  limited  extent. 
But  still,  whenever  a  bond  or  other  debt  was  assigned,  and  it  was 
necessary  to  sue  at  law  for  the  recovery  thereof,  it  had  to  be  done  in 
the  name  of  the  original  creditor,  the  person  to  whom  it  was  trans- 
ferred being  treated  rather  as  an  attorney  than  as  an  assignee,  although 
his  rights  were  recognized,  and  protected,  in  some  measure,  at  law, 
against  the  frauds  of  the  assignor  (e). 

§  1057.  In  equity,  on  the  other  hand,  the  assignee  might  always 
sue  on  such  an  assignment  in  his  own  name,  and  enforce  payment  of 
the   debt   directly   against  the   debtor,    making  him,    as   well   as  the 

(a)  Harrington  v.  Long,  2  Myl.  &  K.  590.  The  report  in  this  case  is  somewhat 
obscure,  and  does  not  exactly  present  the  true  ground  of  the  decision.  But  the  argu- 
ment of  the  counsel  for  the  defendant,  in  pages  558,  599,  shows  it.  Provision  for 
assignment  of  interest  is  now  made  by  Rules  of  the  Supreme  Court,  1883,  Order  17. 

(b)  Douglas  v.  Russell,  4  Sim.  524;  1  Myl.  and  K.  488. 

(c)  Langton  v.  Horton,  1  Hare  549,  556,  557  ;  b.c.  5  Beav.  9. 

(d)  Malcolm  v.  Charlesioorth ,  1  Keen  63. 

(e)  Ex  parte  South,  3  Swanst.  398 ;  Durham  Brothers  v.  Robertson,  [1898]  1 
Q.  B.  765 ;  Barker  v.  Richardson,  1  Y.  &  J.  362. 


§    1054 1057.]  ASSIGNMENTS.  441 

assignor  (if  necessary),  a  party  to  the  action.  The  assignment  of  a 
debt  does  not,  in  equity,  require  even  the  assent  of  the  debtor,  in  any 
manner,  thereto;  although,  to  make  it  effectual  for  all  purposes,  it 
may  be  important  to  give  notice  of  the  assignment  to  him ;  since, 
until  notice,  he  is  not  aflected  with  the  trust  created  thereby,  and  the 
rights  of  third  persons  may  intervene  to  the  prejudice  of  the  assignee. 
The  ground  of  this  doctrine  is,  that  the  creditor  has,  in  equity,  a 
right  to  dispose  of  his  own  property  as  he  may  choose ;  and  to  require 
the  debt  to  be  paid  to  such  person  as  he  may  direct,  without  any 
consultation  with  the  debtor,  who  holds  the  debt,  subject  to  the  rights 
of  the  creditor  (/). 

(/)  Hammond  v.  Messenger,  9  Sim.  327. 


442  EQUITY   JURISPJIUDENCE.  [CH.    XXVIII. 


CHAPTER   XXVIII. 

WILLS    AND    TESTAMENTS. 

§  1058.  In  the  next  place,  let  us  pass  to  the  oonsideration  of  express 
trusts  of  real  and  personal  property,  created  by  Last  Wills  and 
Testaments.  These  are  so  various  in  their  nature  and  objects,  and  so 
extensive  in  their  reach,  that  it  would  be  impracticable  to  comprehend 
them  within  the  plan  of  these  commentaries.  They  are  most  usually 
created  for  the  security  of  the  rights  and  interests  of  infants,  of  femes 
covert,  of  children,  and  of  other  relations;  or  for  the  payment  of  debts, 
legacies,  and  portions,  or  for  the  sale  or  piirchase  of  real  estate  for  the 
benefit  of  heirs,  or  others  having  claims  upon  the  testator;  or  for 
objects  of  general  or  special  charity.  Many  trusts,  also,  arise  under 
wills,  by  construction  and  implication  of  law.  But  in  whatever  way, 
or  for  whatever  purpose,  or  in  whatever  form,  trusts  arise  under  wills, 
they  are  exclusively  within  the  jurisdiction  of  courts  of  equity.  Indeed, 
so  many  arrangements,  modifications,  restraints,  and  intermediate 
directions  are  indispensable  to  the  due  administration  of  these  trusts, 
that,  without  the  interposition  of  courts  of  equity,  there  would,  in  many 
cases,  be  a  total  failure  of  justice  (a). 

§  1059.  The  truth  of  this  remark  will  at  once  be  seen  by  the 
statement  of  a  very  few  plain  cases,  to  illustrate  it.  In  the  first  place, 
trusts  are  often  created  by  will,  without  the  designation  of  any  trustee 
who  is  to  execute  them ;  or  it  may  be  matter  of  doubt,  upon  the  terms 
of  the  will,  who  is  the  proper  party.  Now  it  is  a  settled'  principle  in 
courts  of  equity,  as  has  been  already  stated,  that  a  trust  shall  never 
fail  for  the  want  of  a  proper  trustee  (b);  and,  if  no  other  is  designated, 
courts  of  equity  will  take  upon  themselves  the  due  execution  of  the 
trust. 

§  1060.  Thus,  for  example,  if  a  testator  should  order  his  real  estate, 
or  any  part  thereof,  to  be  sold  for  the  payment  of  his  debts,  without 
saying  who  should  sell,  in  such  a  case  a  clear  trust  would  be  created. 
Modem  legislation  has  rendered  this  example  of  no  importance  in 
England,  for  the  legal  estate  would  now  vest  in  the  personal  represen- 
tatives of  the  testator,  and  they  would  be  the  parties  to  execute  the 

(a)  As  to  charges  on  real  estate,  for  the  payment  of  debts,  see  post,  §  1246. 

(b)  Ante,  §  976;  Co.  Litt.  290,  b,  Butler's  note  (1),  §  4. 


§  1058 1063.]         WILLS  AND  TESTAMENTS.  443 

trust  and  to  sell  and  convey  the  land    axid    receive    the    purchase - 
money  (c). 

§  1061.  In  the  next  place,  let  us  suppose  the  case  of  a  will  giving 
power  to  trustees  to  sell  an  estate  upon  some  specified  trust,  and  they 
should  all  refuse  to  execute  the  trust,  or  should  all  die  before  executing 
it.  Now,  it  was  a  well-known  rule  of  the  common  law,  that  powers 
are  never  imperative;  but  the  acts  to  be  done  under  them  were  left  to 
the  free  will  of  the  parties  to  whom  they  are  given.  The  same  rule 
was  applied  at  law  to  such  powers,  even  when  coupled  with  a  trust. 
Hence,  in  the  case  supposed,  the  trust  would  at  law  be  wholly  gone. 
The  trustees,  if  living,  could  not  at  law  be  compelled  to  execute  the 
trust;  and  by  their  death  the  power  could  be  entirely  extinguished  (d). 
But  a  court  of  equity  regarded  a  special  power  as  in  the  nature  of  a 
trust,  and  enforced  its  execution  accordingly,  either  by  the  original 
trustees  or  substituted  trustees,  or  in  administration  proceedings  (e). 

§  1062.  In  regard  to  powers,  too,  some  nice  distinctions  were  taken 
at  law,  which  often  required  the  interposition  of  courts  of  equity. 
Thus,  for  instance,  it  was  a  general  rule  of  law  that  a  mere  naked 
power,  given  to  two,  could  not  be  executed  by  one;  or,  if  given  to 
three,  could  not  be  executed  by  two,  although  the  other  were  dead ; 
for,  in  each  case,  it  was  held  to  be  a  personal  trust  in  all  the  persons, 
unless  some  other  language  was  used  to  the  contrary.  Then,  suppose 
a  testator,  by  his  will,  should  give  authority  to  A.  and  B.  to  sell  his 
estate,  and  should  make  them  his  executors,  in  such  a  case,  it  has 
been  said,  that  the  survivor  could  not  sell  (/).  But,  if  the  testator 
should  give  authority  to  his  executors  (eo  nomine)  to  sell,  and  should 
make  A.  and  B.  his  executors,  there,  if  one  should  die,  the  survivor 
(it  has  'been  said)  could  sell  {g).  Now,  by  force  of  the  Trustee  Act, 
1893  (56  &  57  Vict.  c.  53),  section  22,  and  of  the  Conveyancing  Act, 
1911  (1  &  2  Geo.  v.,  c.  57),  section  8,  a  power  or  trust  vested  in  two 
or  more  trustees  survives  and  may  be  executed  by  the  survivors  or 
survivor  or  the  personal  representative  of  a  sole  or  last  surviving 
trustee,  unless  the  instrument  creating  the  power  or  trust  contains 
a  provision  to  the  contrary. 

§  1063.  Upon  the  construction  of  wills  also  many  difficult  questions 
arise,  as  to  the  nature  and  extent  of  powers,  and  the  manner  in  which 
they  are  to  be  executed.  It  would  occupy  too  great  a  space  to  enter 
into  a  general  examination,  even  of  the  leading  authorities  upon  this 
subject.     But  one  or  two  illustrations  may  not  be  without  use,  rather 

(c)  Law  of  Property  Amendment  Act,  1859  (22  &  23  Vict.  c.  35),  bs.  14,  15,  16; 
Land  Transfer  Act,  1897  (60  &  61  Vict.  c.  65),  Part  1;  In  re  Barrow-in-Furness  and 
RawUnson's  Contract,  [1903]  1  Ch.  663. 

(d)  Co.  Litt.  113  a,  Hargrave's  note  (2). 

(e)  Harding  v.  Glynn,  1  Atk.  469 ;  Brown  v.  Higgs,  i  Ves.  708,  5  Ves.  495,  8  Ves. 
561;  In  re  Bradshaw,  Bradshaw  v.  Bradshaw,  [1902]  1  Ch.  436. 

(/)  Co.  Litt.  1126,  113o,  and  Hargrave's  note  (2). 
(3)  Co.  Litt.  1126. 


444  EQUITY    JURISPRUDENCE.  [CH.    XXVIII. 

to  open  the  mind  to  some  of  the  doubts  which  may  arise,  than  to 
satisfy  inquiries  (h).  Thus,  for  example,  where  a  testator  directed 
that,  if  his  personal  estate  and  house  and  lands  at  W.  should  not  pay 
his  debts,  then  his  executors  should  raise  the  same  out  of  his  copy- 
hold estate;  it  became  a  question  whether  the  terms  of  the  power 
authorized  a  sale  of  the  copyhold  estate.  It  was  held  that  they 
did  (0. 

§  1064.  This  is  a  comparatively  simple  question.  But  suppose  a 
will  should  contain  a  direction  or  power  to  raise  money  out  of  the 
rents  and  profits  of  an  estate,  to  pay  debts  or  portions,  &a.,  a  question 
might  then  arise,  whether  such  a  power  would  authorize  a  sale  or 
mortgage  of  the  estate  under  any  circumstances ;  as,  for  instance,  if 
it  were  otherwise  impracticable,  without  the  most  serious  delays  and 
inconveniences,  to  satisfy  the  purposes  of  the  trust.  Now,  this  is  a 
point  upon  which  great  authorities  have  entertained  opposite  opinions. 
At  one  time  it  was  held  that  the  power  should  be  restricted  to  the 
mere  application  of  the  annual  rents  and  profits,  but  the  modern  cases 
hold  to  a  more  reasonable  construction,  that  a  conveyance  for  value  or 
by  way  of  gift  of  the  entire  income  is  in  substance  and  effect  a  gift  of 
the  capital,  unless  qualified  by  words  restricting  a  gift  of  the  income 
to  a  particular  time  or  otherwise  limited,  or  unless  the  circumstances 
render  such  a  construction  unreasonable  (k).  Prima  facie,  therefore, 
the  donee  of  the  power  might,  if  necessary  for  the  purposes  of  the  trust, 
sell  or  mortgage  the  estate. 

§  1064c.  A  power  to  raise  money  by  sale  or  mortgage  of  real 
estate  was  held  to  authorize  a  mortgage  with  a  power  of  sale  (i).  But 
a  devise  of  real  estate  to  isrustees,  in  fee  upon  triist,  ' '  out  of  the  rents, 
issues,  and  profits,"  "  and  such  other  means  (except  a  sale)  as  they 
may  think  proper,  to  levy  and  raise  sufficient  to  pay  off  the  charges 
on  the  estate,"  does  not  give  the  trustees  the  power  to  raise  the 
charges,  either  by  sale,  by  mortgage,  or  by  leases  on  fines,  but  they 
must  be  raised  out  of  the  rents,  and  the  profits  of  timber  and 
mines  (tw).  And  where  the  testator  charged  certain  of  his  lands  with 
the  payment  of  a  mortgage  upon  other  lands  (which  he  also  devised 
specially),  and  with  the  payment  of  his  debts  generally,  but  gave  no 
express  power  of  sale,  it  was  held  that  the  executor  took  a  power  of 
sale  by  implication,  and  that  the  purchaser  of  the  executor  took  the 
land  discharged  of  all  equity  in  favour  of  the  devisee   (n).      At   the 

Qi)  Sugden,  Powers,  chap.  4,  §  1,  chap.  8,  §  1. 

(i)  BatemanY.  Bateman,  1  Atk.  421. 

(k)  Allan  v.  Backhouse,  3  Yes.  &  B.  64,  Jac.  631;  Bootle  v.  Blundell,  1  Mer.  193; 
Metcalfe  v.  Hutchinson,  1  Ch.  D.  481 ;  In  re  Tubbs,  Dykes  v.  Tubbs,  [1915]  1  Ch.  540. 

(I)  Bridges  v.  Longman,  24  Beav.  27;  In  re  Ghawner's  Will,  L.  E.  8  Bq.  569. 
See  Earl  Vane  v.  Rigden,  L.  E.  5  Ch.  663. 

(m)  Bennett  v.   Wyndham,  23  Beav.  521. 

(n)  Robinson  v.  Lowater,  3  De  G.  M.  &  G.  272 ;  Greetham  v.  Colton,  34  Beav. 
615.     See  also  Gorser  v.  Gartwright,  L.  R.  7  H.  L.  731. 


§  1064,  1065.]         WILLS  AND  TESTAMENTS.  445 

present  day  a  mortgage  by  deed  incorporates  presumptively  a  power 
of  sale  by  force  of  the  Conveyancing  Act,  1881  (44  &  45  Vict.  c.  41), 
s.  19.  It  has  been  suggested  that  where  the  trustee  is  not  authorized 
to  grant  a  power  of  sale  he  should  exclude  this  provision.  There  is, 
however,  a  power  to  order  a  judicial  sale  under  section  25,  and  the 
suggested  difficulty  seems  unsubstantial. 

§  1065.  In  the  next  place,  independently  of  the  consideration  of- 
powers,  many  very  embarrassing  questions  arise  as  to  the  nature  and 
extent  of  the  limitations  of  trust,  properly  so  called,  under  last  wills; 
as  to  the  persons  who  are  to  take;  and  also  as  to  the  interest  they 
are  to  take  in  the  trust  property.  Many  of  these  trusts  require  the 
positive  interposition  and  direction  of  courts  of  equity,  before  they 
can  be  properly  or  safely  executed  by  the  parties  in  interest,  so  as  to 
protect  them  against  future  litigation  and  controversy.  And  it  not 
unfrequently  happens,  that  the  final  administration,  settlement,  and 
distribution  of  the  assets  of  the  testator,  real  and  personal,  must 
stand  suspended,  until  the  aid  of  some  court  of  equity  has  been 
invoked,  and  a  judgment  is  obtained,  containing  a  declaration  of  the 
nature  and  extent  of  these  trusts,  of  the  parties  who  are  entitled  to 
take,  and  of  the  limitations  of  their  respective  interest;  and  also  pro- 
viding means,  by  reference  to  a  master,  whereby  the  cross-equities  and 
conflicting  claims  of  various  persons,  such  as  creditors,  trustees, 
legatees,  devisees,  heirs,  and  distributees,  may  be  clearly  ascertained 
and  definitely  established  (o).  Thus,  for  example,  upon  a  will  creating 
a  trust  for  the  payment  of  debts,  and  charging  them,  as  well  as 
legacies,  upon  the  real  estate  of  the  testator,  it  may  often  be  a  matter 
of  serious  difficulty  to  ascertain,  from  the  words  of  the  will,  whether 
the  personal  estate  is  to  be  wholly  exonerated  from  the  payment  of 
the  debts  and  legacies ;  or  whether  it  is  to  be  the  primary  fund,  and  the 
real  estate  only  to  be  auxiliary  thereto.  And  in  each  case,  if  the 
charges  on  the  real  estate  are  not  sufficient  to  exhaust  the  whole,  in 
what  manner  the  charges  are  to  be  borne  and  apportioned  among  the 
different  devisees  and  heirs  (p).  Until  these  questions  are  settled  by 
a  court  of  equity,  it  will  be  impossible  for  the  executors  or  trustees; 
(as  the  case  may  be)  to  proceed  to  a  final  settlement  of  the  various, 
claims,  without  manifest  danger  of  having  all  their  proceedings  over- 
hauled in  some  future  proceeding  (g). 

(o)  This  subject  has  been  already  somewhat  considered  under  the  heads  of  Account,, 
Administration,  Legacies,  and  Marshalling  of  Securities.    Ante,  oh.  8,  9,  10,  13. 

(p)  See  2  Powell  on  Devises,  by  Jarman,  ch.  35,  pp.  664  to  714,  and  notes;  1 
Mad.  Pr.  Ch.  466  to  488.  See  Forrest  v.  Prescott,  L.  E.  10  Eq.  545 ;  Powell  v.  Riley ^ 
L.  E.  12  Eq.  175. 

(q)  Some  of  these  difficulties  have  been  already  touched,  in  considering  the  doc- 
trines respecting  the  marshalling  of  assets  and  securities.  Ante,  §  §  558  to  680,  633  to 
645.  See  also  the  notes  of  Mr.  Cox  to  Howell  v.  Price,  1  P.  Will.  294,  note  (1),  and 
to  Evelyn  v.  Evelyn,  2  P.  Will.  664,  note  (1),  as  to  the  point  whether  the  personal 
estate  is  to  be  deemed  the  primary  fund  for  the  payment  of  debts  and  legacies,  or  not. 
See  also  1  Mad.  Pr.  Ch.  467  to  488 ;  id.  498  to  506. 


446  EQUITY    JURISPRUDENCE.  [CH.    XXVIII. 

§  1065a.  It  is  entirely  beyond  the  province  of  this  book  to  deal 
with  the  interest®  of  beneficiaries  under  wills,  a  subject  which  belongs 
to  the  law  of  property  and  has  nothing  to  do  with  any  jurisprudence 
peculiar  to  courts  of  equity.  It  may  be  sufficient  to  indicate  to  the 
student  that  words  of  known  legal  import  may  be  qualified  by  the 
general  language  of  the  will  or  by  explanatory  phrases,  and  that  the 
judicial  interpretation  of  a  will  may  now  be  obtained  cheaply  and 
expeditiously  under  the  Eules  of  the  Supreme  Court,  1883,  O.  LV., 
rule  3. 

§  1066.  There  are  also  some  rules  of  construction  of  the  words  of 
wills,  adopted  by  courts  of  equity  in  relation  to  trusts,  which  are  differ- 
ent from  those  which  are  adopted  by  courts  of  law  in  construing  the 
same  words  in  relation  to  mere  legal  estates  and  interests.  We  have 
already  had  occasion  to  take  notice  of  this  distinction,  in  remarking  upon 
the  difference  between  executed  and  executory  trusts.  In  the  former, 
courts  of  equity  follow  the  rules  of  law  in  the  interpretation  of  the  words ; 
in  the  latter,  they  often  proceed  upon  an  interpretation  widely 
different  (r). 

§  1067.  In  regard  also  to  legacies  and  bequests  of  chattels  and  other 
personal  property,  courts  of  equity  (as  we  have  seen)  treat  all  such  cases 
as  matters  of  trust,  and  the  executor  as  a  trustee  for  the  benefit  of  the 
legatees,  and  as  to  the  undisposed  residue  of  such  property,  as  a  trustee 
for  the  next  of  kin  (s).  The  rules,  therefore,  adopted  by  courts  of  equity, 
in  expounding  the  words  of  wills  in  regard  to  bequests  of  personal  pro- 
perty, are  not  precisely  the  same  as  those  adopted  by  courts  of  law  in 
interpreting  the  same  words  as  to  real  estate.  For  courts  of  equity, 
having  succeeded  to  the  jurisdiction  of  the  ecclesiastical  courts  over 
these  matters,  and  these  courts,  in  the  interpretation  of  legacies  being 
governed  by  the  rules  of  the  civil  law,  courts  of  equity  have  followed 
them  in  such  interpretation,  rather  than  the  rules  of  the  common  law 
where  they  difier  (i). 

§  1068.  In  the  interpretation  of  the  language  of  wills,  also,  courts 
of  equity  have  gone  great  lengths,  by  creating  implied  or  constructive 
trusts  from  mere  recommendatory  and  precatory  words  of  the  testator. 
The  best  exposition  is  that  stated  by  Lord  Alvandey,  "  Wherever -any 
person  gives  property,  and  points  out  the  object,  the  property,  and  the 
way  in  which  it  shall  go,  that  does  create  a  trust,  unless  he  shews  clearly, 
that  his  desire  expressed  is  to  be  controlled  by  the  party ;  and  that  he 
shall  have  an  option  to  defeat  it "  (m).  And  where  the  object  is  charity, 
ihe  established  rule  is  followed,  and  a  trust  will  be  raised  if  a  general 

(r)  Ante,  §  974.    See  aa  to  executory  trusts,  Thompson  v.  Fisher,  10  Bq.  207. 
(s)  Ante,  §  §  593,  595. 

(f)  Ante,  §  §  4,  602;  Crooks  v.  De  Vandes,  9  Ves.  197. 

(u)  Malim  V.  Keighley,  3  Ves.  333,  335,  aifd.  3  Ves.  529.  See  also  In  re  Hamilton, 
Trench  v.  Hamilton,  [1895]  2  Ch.  370;  Comiskey  v.  Bowring-Hanbury ,  [1905]  A.  C. 


§  1065a — 1068.]  wills  and  testaments.  447 

charitable  intention  is  expressed,  although  a  definite  charitable  institu- 
tion is  not  named  (x).  The  cases  are  very  numerous  and  difficult  to 
reconcile,  and  many  will  endorse  the  opinion  of  a  very  eminent  judge, 
that  the  officious  kindness  of  the  court  of  chancery  in  interposing  trusts 
where,  jn  many  cases,  the  father  of  the  family  never  meant  to  create 
trusts,  must  have  been  a  very  cruel  kindness  indeed  "  (y).  And  as  was 
said  at  an  earlier  date,  ' '  The  first  case  that  construed  words  of  recom- 
mendation into  a  command,  made  a  will  for  the  testator;  for  every  one 
knows  the  distinction  between  them.  The  current  of  decisions,  has,  of 
late  years,  been  against  converting  the  legatee  into  a  trustee  "  (a). 
Those  words  were  spoken  in  1827  and  have  found  an  echo  in  subsequent 
cases  (a),  but  the  definition  of  Lord  Alvanley  has  twice  been  endorsed 
in  the  House  of  Lords  (b).  It  has  been  suggested  that  too  little  atten- 
tion has  sometimes  been  paid  to  the  fact  that  where  the  precatory  words 
follow  an  absolute  gift,  the  raising  of  a  precatory  trust  after  the  death 
of  the  beneficiary  infringes  the  rule  of  construction  that  an  absolute  gift 
shall  not  be  cut  down  but  by  the  clearest  words.  Still  the  common  law 
furnishes  cases  illustrative  of  a  similar  result.  Thus,  where  lands  were 
devised  to  A.  and  his  heirs,  but  if  he  should  die  without  having  settled 
or  otherwise  disposed  of  the  estates  so  devised,  or  without  leaving  issue 
of  his  body  then  over,  it  was  held  that  A.  took  an  absolute  estate  with 
an  executory  gift  over  which  had  been  defeated  by  A.  's  conveyance  (c). 
Without  going  through  the  cases  in  detail,  it  wiU  be  sufficient  for  the 
purposes  of  the  student  to  note  that  a  precatory  trust  has  been  raised 
upon  the  use  of  the  words,  "  advise  him  to  settle  it  "  (d),  "  hoping  "  (e), 
"  desiring  "  (/),  "  It  is  my  dying  request  "  (g),  "  It  is  my  request  "  {h,), 
"  1  recommend"  (i),  "  Save  the  prayer  hereinafter  contained  .... 
convinced  of  the  high  sense  of  honour  and  probity  of  my  son-in-law  A., 
I  entreat  him  "  (fc),  '*  In  full  confidence  "  (0,  "  Feeling  assured  and 

(x)  In  re  Burley,  Alexander  v.  Burley,  [1910]  1  Ch.  216. 
(y)  James,  L.  J.,  Lambe  v.  Eames,  L.  E.  6  Ch.  597,  599. 
(z)  Sale  V.  Moore,  1  Sim.  534. 

(a)  Lambe  v.  Eames,  L.  E.  6  Ch.  597;  In  re  Adams  and  the  Kensington  Vestry, 
27  Ch.  D.  394. 

(b)  Knight  v.  Boughton,  11  CI.  &  P.  513 ;  Comiskey  v.  Bowring -H anbury ,  [1905] 
A.  C.  84. 

(c)  Beechcroft  v.  Broome,  4  T.  E.  441. 

(d)  Porter  v.  Bolton,  5  L.  J.  N.  S.  Ch.  98. 

(e)  Harland  v.  Trigg,  1  Bro.  C.  C.  142. 

(/)  Gruwys  v.  Caiman,  8  Ves.  319;  In  re  Oldfield,  Oldfield  v.  Oldfield,  [1904]  1 
Ch.  549. 

(g)  Pierson  v.  Garnett,  2  Bro.  C.  C.  38,  226. 

(h)  Bernard  v.  Minshule,  Johns.  276. 

(i)  Lord  Kingston  v.  Lord  Lorton,  2  Hog.  166;  Ford  v.  Fowler,  3  Beav.  146; 
Cholmondeley  v.  Cholmdndeley ,  14  Sim.  690. 

(k)  Prevost  v.  Clarke,  2  Mad.  458. 

(I)  Wace  V.  Mallard,  25  L.  J.  Ch.  355;  Comiskey  v.  Bawring -H anbury ,  [1905] 
A.  C.  84. 


448  EQUITY   JURISPRUDENCE.  [CH.    XXVIII. 

having  every  confidence"   (m),   "Well  knovs^ing  "   (n),   "Not  doubt- 
ing "  (o),  "  Trusting  "  is  a  word  of  art,  and  plainly  implies  a  trust  (p). 

§  1071.  In  respect  to  certainty  in  the  description  of  objects  or  per- 
sons in  such  recommendatory  trusts,  it  may  be  proper  to  state,  that  it 
is  not  indispensable  that  the  persons  should  be  described  by  their  names. 
But  mere  general  descriptions  vifill  often  amount  to  a  sufficient  designa- 
tion of  the  persons  to  take;  such,  for  example,  as  "  sons,"  "  children," 
"  family,"  and  "  relations  ";  if  the  context  fixes  the  particular  persons- 
who  are  to  take,  clearly  and  definitely.  Thus  a  provision  by  vcay  of 
precatory  trust  in  favour  of  the  family  of  A.  would  indicate  the  heir  in 
the  case  of  freehold  lands  (g),  but  in  the  case  of  personalty  would  in- 
clude all  members  related  to  the  donee  of  the  power,  but  if  the  power 
were  not  exercised  a  gift  over  in  favour  of  relations  or  family  would 
be  restricted  to  children  or  next  of  kin  (r). 

§  1073.  In  the  next  place,  as  to  certainty  in  the  description  of  pro- 
perty, or  rather,  as  to  what  property  is  bequeathed.  If  it  appears  that 
the  person  upon  whom  a  precatory  trust  is  sought  to  be  imposed  had  it  in 
his  power  to  diminish  the  capital  of  the  property,  there  the  trust  will 
fail  from  want  of  a  sufficiently  definite  subject-matter  (s). 

§  1074.  These  may  suffice  as  specimens  of  the  curious  refinements 
in  the  interpretation  of  wills,  which  courts  of  equity  have  adopted  in 
creating  constructive  trusts ;  in  which,  indeed,  they  have  often  been 
followed  by  courts  of  law  in  regard  to  legal  estates  (t).  It  is  highly 
probable,  that  some  of  these  refinements  were  borrowed  from  the  civil 
law,  in  which  the  distinction  between  pure  legacies,  and  legacies  clothed 
with  trusts,  was  well  known.  Thus,  it  is  said,  "  Legatum,  est,  quod 
legis  modo,  id  est  imperative,  testamento  reUquitur.  Nam  ea  quae 
precativo  modo  relinquuntur,  fideicommissa  vocantur."  And  again, 
"  Fideicommissum  est,  quod  non  civilibus  verbis,  sed  precativfe  relin- 
quitur;  neo  ex  rigore  juris  civilis  proficiscitur,  sed  ex  voluntate  datur 
relinquentis  "  (u).  And  then,  by  the  way  of  illustration,  it  is  declared, 
"  Fideicommittere  his  verbis  possumus;  rogo,  peto,  volo,  mando,  de- 
precor,  cupio,  injungo.  Desidero,  quoque  et  impero  verba,  utile  faciixat 
fideicommissum :  relinquo,  vero,  et  commendo,  nullam  fideicommissi 
pariunt  actionem  "  (x).     Some  of  these  shades  of  distinction  are  ex- 

(m)  Gully  V.  Cregoe,  24  Beav.  185.         (n)  Bnggs  v.  Penny,  3  Mac.  and  G.  546 

(0)  Parsons  v.  Baker,  18  Ves.  476. 
(p)  Baker  v.  Mosley,  12  Jur.  740. 

(g)  Wright  v.  Atkyns,  17  Ves.  255;  s.c.  19  Ves.  301;  G.  Coop.  116;  Griffiths  v. 
Evan,  5  Beav.  241. 

(r)  Grant  v.  Lynam,  4  Euss.  292;  Liley  v.  Hey,  1  Hare  580;  In  re  Hutchinson 
and  Tennant,  8  Ch.  D.  540. 

(s)  Curtis  V.  Rippon,  5  Mad.  434;  Sale  v.  Moore,  1  Sim.  634;  Lambe  v    Eames 
L.  E.  6  Ch.  597. 

(1)  Doe  V.  Smith,  5  M.  &  S.  126 ;  Doe  v.  Joinville,  3  East  172. 
(m)  Pothier,  Pand.  Lib.  30,  tit.  1  to  3,  n.  3. 

(x)  Ibid. ;  Inst.  B.  2,  tit.  24,  §  3;  Cod.  Lib.  6,  tit.  43,  1.  2;  Dig.  Lib.  31,  tit.  2, 
f.  77  passim. 


§  1071 — 1074.]        WILLS  AND  TESTAMENTS.  449 

tremely  nice,  and  almost  evanescent ;  especially  that  between  the  words 
"  deprecor,  peto,"  and  "  desidero,"  and  the  words  "  relinquo  "  and 
commendo. ' '  Again,  ' '  Etiam,  hoc  modo ;  cupio  des,  opto  des,  credo 
te  daturum,  fideicommissum  est  (y).  Et  eo  modo  relictum;  exigo, 
desidero  uti  des,  fideicommissum  valet  («).  Verba,  quibus  testator  ita 
caverat;  non  dubitare  se,  quodeumque  uxor  ejus  cepisset  liberis  suis 
redditurum,  pro  fideicommisso  accipienda  "  (a).  In  these  last  citations 
we  may  clearly  trace  the  origin,  or  at  least  the  application,  of  some  of 
our  modem  equity  doctrines. 

{y)  Dig.  Lib.  30,  tit.  1,  f.  115. 

(z)  Ibid.  f.  118. 

(a)  Dig.  Lib.  31,  tit.  2,  f.  67,  §  10. 


E.J. 


29 


450  EQUITY    JURISPRUDENCE.  [CH.    XXIX. 


CHAPTER    XXIX. 


ELECTION  AND   SATISFACTION. 


§  1075.  It  is  in  cases  of  wills  also,  that  the  doctrine  respecting  Elec- 
tion AND  Satisfaction  must  frequently,  though  not  exclusively,  arise  in 
practice,  and  is  acted  upon  and  enforced  by  courts  of  equity.  Election, 
in  the  sense  here  used,  is  the  obligation  imposed  upon  a  party  to  choose 
between  two  inconsistent  or  alternative  rights  or  claims,  in  cases  where 
there  is  clear  intention  of  the  person,  from  whom  he  derives  one,  that 
he  should  not  enjoy  both.  Every  case  of  election,  therefore,  presupposes 
a  plurality  of  gifts  or  rights,  with  an  intention,  express  or  implied,  of 
the  party  who  has  a  right  to  control  one  or  both,  that  one  should  be  a 
substitute  for  the  other.  The  party  who  is  to  take,  has  a  choice,  but  he 
cannot  enjoy  the  benefits  of  both  (a). 

§  1076.  Thus,  for  example,  if  a  testator  should,  by  his  wUl,  give  to 
a  legatee  an  absolute  legacy  of  ten  thousand  pounds,  or  an  annuity  of 
one  thousand  pounds  per  annum  during  his  life,  at  his  election;  it  would 
be  clear  that  he  ought  not  to  have  both ;  and  that  he  ought  to  be  com- 
pelled to  make  an  election,  whether  he  would  take  the  one  or  the  other. 
This  would  be  a  case  of  express  and  positive  election  (b).  But  suppose, 
instead  of  such  a  bequest,  a  testator  should  devise  an  estate  belonging 
to  his  son,  or  heir-at-law,  to  a  third  person ;  and  should,  in  the  same 
will,  bequeath  to  his  son,  or  heir-at-law,  a  legacy  of  one  hundred 
thousand  pounds,  or  should  make  him  the  residuary  devisee  of  all  his 
estate,  real  and  personal.  It  would  be  manifest,  that  the  testator  in- 
tended that  the  son  or  heir  should  not  take  both,  to  the  exclusion  of  the 
other  devisee ;  and  therefore  he  ought  to  be  put  to  his  election  which  he 
would  take ;  that  is,  either  to  relinquish  his  own  estate,  or  to  compen- 
sate the  party  disappointed,  or  in  the  case  of  a  testator  his  estate,  out 

(o)  Mr.  Swanston's  note  to  Dillon  v.  Parker,  1  Swanst.  394,  note  (b) ;  Thellusson 
V.  Woodford,  13  Ves.  220,  2  Mad.  Pr.  Ch.  40  to  49 ;  Jeremy  on  Bq.  Jurisd.  B.  3  Pt.  2, 
ch.  5,  pp.  534  to  538.  Mr.  Swanston's  note  is  drawn  up  with  great  ability  and  learn- 
ing ;  and  I  have  freely  used  it  in  the  discussion  of  this  topic.  The  whole  subject  of 
election  is  also  most  elaborately  examined  in  Roper  on  Legacies  by  White,  vol.  2,  ch. 
23,  pp.  480  to  678,  to  which  the  attention  of  the  learned  reader  is  invited.  It  is  wholly 
inconsistent  with  the  nature  of  these  Commentaries  to  discuss  all  the  minute  distinc- 
tionfi  belonging  to  it,  interesting  and  important  as  they  certainly  are.  The  subject  of 
election  has  formed  the  subject  of  an  exhaustive  treatise,  by  George  Serrell,  Esq., 
M.A.,  LL.D.,  to  which  the  reader  is  further  referred. 

(b)  See  Parker  v.  Sowerby,  4  De  G.  M.  &  G.  321;  Linley  v.  Taylor,  1  Giff.  67. 


§    1075 — 1078.]  ELECTION  AND  SATISFACTION.  451 

of  the  bequest  under  the  will.  This  would  be  a  case  of  implied  or  con- 
structive election  (c). 

§  1077.  Now,  the  ground  upon  which  courts  of  equity  interfere  in 
all  cases  of  this  aort  (for  at  law  there  is  no  direct  remedy  to  compel  an 
election)  is,  that  the  purposes  of  substantial  justice  may  be  obtained 
by  carrying  into  full  effect  the  whole  intentions  of  the  testator  (d).  And 
in  regard  to  the  cases  of  implied  election,  it  has  been  truly  remarked, 
that  the  foundation  of  the  doctrine  is  still  the  intention  of  the  author 
of  the  instrument ;  an  intention,  which,  extending  to  the  whole  disposi- 
tion, is  frustrated  by  the  failure  of  any  part,  but  such  intention  may  be 
repelled  by  the  declaration  in  the  instrument  itself  of  a  particular  inten- 
tion inconsistent  with  the  presumed  and  general  intention  (e).  Its 
characteristic,  in  its  application  to  these  cases,  is,  that  by  equitable 
arrangement,  full  effect  is  given  to  a  donation  of  that  which  is  not  the 
property  of  the  donor.  This  principle  is  applicable  to  the  case  of  invalid 
provisions  affecting  appointment  under  powers.  If  a  valid  appointment 
is  made  to  an  object  of  the  power  burdened  with  a  provision  not  war- 
ranted by  the  power,  the  appointment  will  be  good  and  the  invalid  pro- 
vision will  be  rejected,  and  as  the  only  fund  out  of  which  compensation 
is  to  be  sought  is  the  appointed  property,  no  case  arises  to  which  the 
equitable  doctrine  of  election  can  apply  (/).  But  if  the  donee  of  the 
power  makes  a  gift  out  of  his  own  property  to  the  object  of  the  power, 
then  the  appointee  must  make  compensation  out  of  the  property  so 
given,  if  he  elects  to  defeat  the  wishes  of  the  donee  so  far  as  they  are 
invalid  (g). 

§  1078.  The  doctrine  of  election,  like  many  other  doctrines  of  equity 
jurisprudence,  appears  to  have  been  derived  from  the  civil  law.  By 
that  law,  a  bequest  of  property  which  the  testator  knew  to  belong  to 
another  was  not  void ;  but  it  entitled  the  legatee  to  recover  from  his 
heir  either  the  subject  of  his  bequest,  or,  if  the  owner  was  unwilling  to 
part  with  that  at  a  reasonable  price,  the  pecuniary  value.  Thus,  it  is 
said  in  the  Institutes,  that  a  testator  may  not  only  bequeath  his  own 
property,  or  that  of  his  heir,  but  also  the  property  of  other  persons ;  so 
that  the  heir  may  be  obliged  to  purchase  and  deliver  it ;  or,  if  he  cannot 
purchase  it,  to  give  the  legatee  its  value  (h).  But  ordinarily,  to  give 
effect  to  a  legacy  in  such  a  case,  the  testator  must  have  known  that  the 
property  so  bequeathed  by  him  belonged  to  another ;  and  not  have  been 
ignorant  of  the  fact,  and  supposed  the  property  was  his  own.    "  Haere- 

(c)  Streatfield  v.  Streatfield,  Oas.  t.  Talb.  176;  Bristow  v.  Warde,  2  Ves.  Jur. 
336 ;  Howells  v.  Jenkins,  1  De  G.  J.  &  S.  617. 

(d)  Crosbie  v.  Murray,  1  Ves.  Jun.  557,  559. 

(e)  In  re  Vardon's  Trusts,  31  Ch.  D.  375;  Haynes  v.  Foster,  [1901]  1  Ch.  361. 
(/)  Carver  v.  Bowles,  2  Russ.  &  M.  304;   Woolridge  v.   Woolridge,  Johns.  63; 

Churchill  v.  Churchill,  L.  B.  5  Bq.  44. 

(g)  In  re  White,  White  v.  White,  22  Ch.  D.  555. 

(h)  Inst.  B.  2,  tit.  20,  §  4,  tit.  24,  §  2;  Dig.  Lib.  30,  tit.  1,  f.  30,  §  7;  Dig.  Lib. 
31,  tit.  2,  f.  67,  §  8;  1  Swanst.  396,  note. 


452  EQUITY    JURISPBUDBNCE.  [CH.    XXIX. 

dum  etiam  res  proprias  ' '  (says  the  Code)  ' '  per  fideicommissum  relinqui 
posse,  non  ambigitur  "  (i). 

§  1079.  In  the  civil  law,  also,  wherever  the  heir  or  devisee  took  an 
estate  under  a  will,  containing  burdensome  legacies,  or  any  disposition 
of  his  own  property  in  the  manner  above  mentioned,  he  was  at  liberty 
to  accept  or  to  renounce  the  inheritance.  But  (it  has  been  said)  he 
had  no  other  alternative.  He  could  not  accept  the  benefit,  offered  by 
the  will,  and  retain  the  property,  of  which  it  assumed  to  dispose,  upon 
the  terms  of  compensation  or  indemnity  to  the  disappointed  claimant. 
The  effect,  therefore,  of  an  election  to  take  in  opposition  to  the  will,  was 
a  renunciation  of  all  the  benefits  offered  by  it.  The  effect  of  an  election 
to  take  under  the  will  was  different  according  to  the  subject-matter. 
If  the  property,  of  which  the  will  assumed  to  deprive  the  devisee,  was 
pecuniary,  he  was  compelled  to  perform  the  bequest  to  the  extent  of 
the  principal  and  interest  which  he  had  received ;  if  the  property  was 
specific,  then  a  peremptory  obligation  was  imposed  upon  him  to  deliver 
that  very  thing,  although  exceeding  the  amoimt  of  the  benefit  conferred 
on  him  (k). 

§  1080.  The  earliest  cases,  in  which  the  doctrine  of  election  was 
applied  in  English  jurisprudence,  seems  to  have  been  those  arising  out 
of  wills;  although  it  has  since  been  extended  to  eases  arising  under 
other  instruments  (I).  It  has  been  suggested  on  more  than  one  occasion 
that  Lord  Redesdale  stated  that  the  doctrine  of  election  constitutes  a 
rule  of  law,  as  well  as  of  equity  (m).  But  it  does  not  require  a  critical 
reading  of  the  passage  to  appreciate  that  Lord  Redesdale  is  adverting 
to  the  equivocal  nature  of  the  expression  election,  which  may  mean  a 
right  of  choice  which  was  the  purely  equitable  doctrine,  and  the  exer- 
cise of  that  right  which  was  known  to  the  common  law  (n),  and  generally 
referred  to  under  the  head  of  Estoppel,  and  also  known  in  equity  where 
it  worked  as  an  estoppel  but  did  not  oust  a  right  to  a  further  benefit  by 
way  of  compensation. 

§  1081.  Whatever  may  be  the  truth  of  the  case  as  to  the  recognition 
of  the  doctrine  of  election  in  courts  of  law,  it  is  very  certain  that  it  is 
principally  enforced  in  courts  of  equity,  where,  indeed,  the  jurisdiction 
to  compel  the  party  to  make  an  election  is  admitted  to  be  exclusive. 
But,  independent  of  this  broad  and  general  ground  of  jurisdiction,  the 
doctrine  must  be  exclusively  enforced  in  equity,  in  all  cases  of  mere 
trust  estates ;  or  where  there  is  the  intervention  of  complicated  cross 

(t)  Cod.  Lib.  6,  tit.  42,  1.  25. 

(ft)  Mr.  Swanaton's  note  to  Dillon  v.  Parker,  1  Swanst.  396. 

(!)  Mr.  Swanston's  note  to  Dillon  v.  Parker,  1  Swanst.  397,  400,  401;  Bigland  v. 
Huddleston,  3  Bro.  C.  C.  28S,  note,  Belt's  edition,  and  his  note  (3);  Green  v.  Green, 
9  Meriv.  86;  s.c.  19  Ves.  665.  It  appears,  from  Mr.  Swanaton's  note  to  Dillon  v. 
Parker,  1  Swanst.  397;  id.  443,  444,  that  traces  of  the  interposition  of  courts  of  equity 
can  be  found  as  early  aa  the  reign  of  Queen  Elizabeth. 

(m)  Birmingham  v.  Kirwan,  2  Sch.  &  L.  444,  450. 

(n)  Lythgoe  v.  Vernon,  5  H.  &  N.  180. 


§    1079 — 1084.]  ELECTION    AND    SATISFACTION.  453 

equities  between  different  persons,  claiming  in  different  degrees,  and 
under  different  limitations  and  titles ;  or  where  conveyances  are  neces- 
sary to  be  decreed ;  or  where  the  recompense  is  not  of  a  nature,  capable 
of  being  applied  as  a  bar  at  law.  Thus  (to  put  a  plain  case),  at  the 
common  law  not  collateral  recompense,  made  in  satisfaction  of  dower, 
or  of  a  right  of  freehold,  could  be  pleaded  in  bar  of  such  right  of 
freehold  or  of  dower  (o).  But,  in  equity,  it  would  be  clearly  held 
obligatory;  and  the  party  would  be  perpetually  enjoined  against 
asserting  the  title  at  law,  or  put  to  an  election,  as  the  circumstances 
of  the  case  might  require  (p). 

§  1082.  In  the  actual  application  of  the  doctrine  of  election,  courts 
of  equity  proceed  upon  principles,  which  are  wholly  inc-apable  of 
being  enforced  in  the  like  manner  by  courts  of  law.  Thus,  for 
example,  suppose  a  case  of  election  under  a  will,  which  disposes  of 
other  property  of  a  devisee ;  and  the  devisee  should  elect  to  hold 
his  own  property,  and  renounce  the  benefit  of  the  devise  under  the 
will,  or  (as  the  compendious  phrase  is)  should  elect  against  the  will ; 
in  such  a  case,  it  is  clear  that  the  party  disappointed  of  his  bequest 
or  devise  by  such  an  election,  would,  at  law,  be  wholly  remediless. 
The  election  would  terminate  all  the  interest  of  the  parties  respec- 
tively in  the  subject-matter  of  the  devise  to  them.  The  election  to 
hold  his  own  estate  would,  of  course,  maintain  the  original  title  of  the 
devisee ;  and  his  renunciation  of  the  intended  benefit  in  the  estate 
devised  to  him  would  leave  the  same  to  fall  into  the  residuum  of  the 
testator's  estate,  as  property  undisposed  of. 

§  1083.  But  the  subject  is  contemplated  in  a  very  different  light 
by  courts  of  equity ;  for,  in  the  event  of  such  an  election  to  take 
against  the  instrument,  courts  of  equity  will  compel  the  devisee  to 
make  up  to  the  disappointed  claimants  the  amount  of  their  interest 
therein ;  for  it  is  now  definitely  settled  that  the  party  claiming  against 
the  will  does  not  forfeit  his  interest  thereunder,  but  is  bound  to  provide 
out  of  the  property  willed  to  him  a  pecuniary  compensation  for  those 
disappointed  by  his  election  (g). 

§  1084.  The  reasoning,  by  which  this  doctrine  is  sustained,  has 
been  stated  by  Sir  William  Grant,  in  his  usual  clear  and  felicitous 
manner.  "  If,"  said  he,  "  the  will  is  in  other  respects  so  framed  as  to 
create  a  case  of  election,  then  hot  only  is  the  estate  given  to  the  heir 
under  an  implied  condition  that  he  shall  confirm  the  whole  of  the  will ; 
but,  in  contemplation  of  equity,  the  testator  means,  in  case  the 
condition  shall  not  be  complied  with,  to  give  the  disappointed  devisees, 

(o)  Co.  Litt.  36i);  1  Swanst.  426,  427,  note. 

(p)  Lawrence  v.  Lawrence,  2  Vern.  366,  and  Mr.  Baithby's  note  (1) ;  1  Swanst. 
398,  note. 

(g)  Bristow  v.  Warde,  2  Ves.  Jun.  836;  Howells  v.  Jenkins,  1  De  Q.  J.  k  S. 
617.  The  curioua  will  find  the  conflicting  decisions  and  dicta  referred  to  in  the  notes 
to  Gretton  v.  Haward,  1  Swanst.  409;  and  to  Dillon  v.  Parker,  1  Swanst.  359. 


454  EQUITY    JURISPRUDENCE.  [CH.    XXIX. 

out  of  the  estate  over  which  he  had  a  power,  a  benefit,  correspondent 
to  that  which  they  are  deprived  of  by  such  non-compliance.  So  that 
the  devise  is  read,  as  if  it  were  to  the  heir  absolutely,  if  he  confirm 
the  will;  if  not,  then  in  trust  for  the  disappointed  devisees,  as  to 
so  much  of  the  estate  given  to  him  as  shall  be  equal  in  value  to  the 
estate  intended  for  them  "  (?■). 

§  1086.  In  regard  to  the  point,  when  an  election  may  be  insisted 
on,  or  not,  everything  must  (it  is  obvious)  depend  upon  the  language 
of  the  particular  vnll ;  and  it  is  difficult,  therefore,  to  lay  down  many 
general  rules  on  the  subject.  On  the  one  hand  it  may  be  stated,  that, 
in  order  to  raise  a  case  of  election  there  must  be  a  clear  intention, 
expressed  on  the  part  of  the  testator,  to  give  that  which  is  not  his 
property  (s).  A  mere  recital  in  a  will,  that  A.  is  entitled  to  certain  pro- 
perty, but  not  declaring  the  intention  of  the  testator  to  give  it  to  him, 
would  not  be  a  sufficient  demonstration  of  his  intention  to  raise  an 
election  (i).  So,  if  a  debtor,  by  his  will,  should  recite  the  amount  of 
the  debt,  erroneously  overstate  the  sum,  and  direct  the  payment  of  it, 
and  also  should  bequeath  to  the  creditor  a  legacy;  in  such  a  case  the 
creditor  would  be  put  to  his  election,  unless  it  appeared  or  was  to  be 
inferred  that  the  testator  did  not  mean  to  pay  the  full  amount  of  the 
actual  debt  (u). 

§  1087.  Upon  the  same  ground,  a  case  of  election  cannot  ordinarily 
arise  where  property  is  devised  in  general  terms;  as,  a  devise  of  "all 
my  real  estate  in  A.,"  which  estate  is  subject  to  the  claims  of  a  devisee 
or  legatee;  for  it  is  not  apparent  that  he  meant  to  dispose  of  any 
property  but  what  was  strictly  his  own,  subject  to  that  charge  (x). 

§  1087a.  Upon  similar  grounds,  where  a  testatrix  gave  a  legacy 
to  B.,  in  satisfaction  of  all  claims  upon  the  estate,  he  having,  at  the 
time,  a  claim  upon  the  testatrix,  in  respect  to  a  legacy  under  the  will 
of  C,  it  was  held,  that  evidence  of  there  being  no  other  claim  by  B. 
against  the  testatrix,  was  inadmissible;  and  that  B.  was  not,  therefore, 
compellable  to  elect  between  the  benefit  under  the  wiU  of  the  testatrix, 
and  that  of  C.  (y).  The  obvious  reason  for  the  decision  is,  that  the 
language  of  the  testatrix  did  not,  by  any  means,  clearly  point  to  any 
extinguishment  of  the  claim  under  the  will  of  C,  and  might  well 
be  satisfied  by  supposing  it  used  solely  with  reference  to  any  claims 
ex  directo  against  her  estate. 

§  1088.  It  was  upon  this  principle  that,  prior  to  the  Dower  Act, 
1833,  a  doweress  could  claim  a  testamentary  provision  in  addition  to 

(r)  Welby  v.  Welby,  2  Ves.  &  B.  190,  191. 

(s)  Att.-Gen.  v.  Earl  of  Lonsdale,  1  Sim.  105. 

(t)  Dashwood  v.  Peyton,  18  Ves.  41;  Box  v.  Barrett,  L.  R.  3  Eq.  244;  In  ie 
Bagot,  Paton  v.  Ormerod,  [1893]  3  Ch.  348. 

(«)  Whitfield  V.  Glemment,  1  Mer.  402;  In  re  Wood,  Ward  v.  Wood,  32  Gh.  D. 
517 ;  In  re  Kelsey,  Woolley  v.  KeUey,  [1905]  2  Ch.  465. 

(x)  Stevens  v.  Stevens,  3  Drew,  697 ;  1  De  G.  &  J.  62;  Evans  v.  Evans,  2  N.  E. 
409.  (y)  Dixon  v.  Samson,  2  Y.  &  Coll.  Ex.  566. 


§    1086 — 1093.]  ELECTION    AND    SATISFACTION.  455 

her  dower,  unless  made  manifestly  with  the  intention  of  its  being  in 
satisfaction  (0). 

§  1089.  It  is  upon  a  similar  ground,  that  the  doctrine  of  election 
has  been  held  not  to  be  applicable  to  cases  where  the  testator  has 
some  present  interest  in  the  estate  disposed  of  by  him,  although  it  is 
not  entirely  his  own.  In  such  a  case,  unless  there  is  an  intention 
clearly  manifested  in  the  will,  or  (as  it  is  sometimes  called)  a  demon- 
stration plain,  or  necessary  implication  on  his  part,  to  dispose  of  the 
whole  estate,  including  the  interest  of  third  persons,  he  will  be 
presumed  to  intend  to  dispose  of  that  which  he  might  lawfully  dispose 
of,  and  no  more  (a). 

§  1090.  It  may  be  stated,  as  a  general  proposition,  that  apart  from 
express  provision  (b),  there  can  be  no  case  of  election  raised  where 
there  are  gifts  contained  in  the  same  instrument  (c).  Thus,  for 
instance,  if  a  man  should,  by  his  will,  give  a  child,  or  other  person,  a 
legacy  or  portion,  in  lieu  or  satisfaction  of  a  particular  thing  expressed, 
that  would  not  exclude  him  from  other  benefits,  although  it  might 
happen  to  be  contrary  to  the  will ;  for  courts  of  equity  will  not  construe 
it,  as  meant  in  lieu  of  everything  else,  when  the  testator  has  said  it  is 
in  lieu  of  a  particular  thing  (d). 

§  1091.  Again,  if  a  legatee  should  decline  one  benefit  charged 
with  a  portion,  given  him  by  a  will,  he  would  not  be  bound  to  decline 
another  benefit,  unclogged  with  any  burden,  given  him  by  the  same 
wiU  (e).  So,  if  a  legatee  cannot  obtain  a  particular  benefit,  designed 
for  him  by  a  will,  except  by  contradicting  some  part  of  it,  he  will  not 
be  precluded  by  such  contradiction,  from  claiming  other  benefits  under 
it  (/). 

§  1092.  It  may  be  added,  that  the  doetrine  of  election  is  not 
applied  to  the  case  of  creditors.  They  may  take  the  benefit  of  a  devise 
for  payment  of  debts,  and  also  enforce  their  legal  claims  upon  other 
funds  disposed  of  by  the  will;  for  a  creditor  claims  not  as  a  mere 
volunteer,  but  for  a  valuable  consideration,  and  ex  debito  jvstitiae  (g). 

§  1093.  On  the  other  hand,  it  is  sufficient  to  raise  a  case  of  elec- 
tion in  equity,  that  the  testator  does  dispose  of  property  which  is  not 
his  own,  without  any  inquiry  whether  he  did  so,  knowing  it  not  to  be 

(z)  Bending  v.  Bending,  3  K.  &  J.  257. 

(a)  Stevens  v.  Stevens,  3  Drew.  697;  1  De  G.  &  J.  62;  Evans  v.  Evans,  2  N.  E. 
409. 

(b)  Talbot  V.  Earl  of  Radnor,  3  M.  &  K.  252. 

(c)  Woolaston  v.  King,  L.  E.  8  Eq.  165;  Jn  re  Lord  Chesham,  Cavendish  v. 
Dacre,  31  Ch.  D.  466.  The  subject  is  discussed  at  length  in  reference  to  the  earlier 
cases  in  the  notes  to  Dillon  v.  Parker,  1  Swanst.  359 ;  and  to  Gretton  v.  Haward, 
1  Swanat.  409. 

(d)  East  v.  Cook,  2  Ves.  Sen.  23;  Dillon  v.  Parker,  1  Swanst.  404,  405,  note.  See 
Wilkinson  v.  Dent,  L.  E.  6  Ch.  339. 

(e)  Andrews  v.  Trinity  Hall,  9  Ves.  534;  Warren  v.  Rudall,  1  Johns.  &  H.  1. 
(J)  See  Dillon  v.  Parker,  405,  note. 

(3)  Kidney  v.  Coussmaker,  12  Ves.  136;  Cooper  v.  Cooper,  L.  E.  7  H.  L.  63. 


'3:56  EQDITY   JURISPRUDENCE.  [CH.    XXIX. 

his  own,  or  whether  he  did  so  under  the  erroneous  supposition  that  it 
was  his  own.  If  the  property  was  known  not  to  be  his  own,  it  would 
be  a  clear  case  of  election.  If  it  was  supposed  erroneously  to  be  his 
own,  still,  there  is  no  certainty  that  his  intention  to  devise  it  would 
have  been  changed  by  the  mere  knowledge  of  the  true  state  of  the  title ; 
and  the  court  will  not  speculate  upon  it  (h).  So,  although  a  part  of 
the  benefits  proposed  by  a  will  should  fail,  the  remainder  may  consti- 
tute a  case  for  an  election  (i). 

§  1094.  Upon  the  ground  of  intention,  also,  where  a  testator  has 
an  absolute  power  to  dispose  of  the  subject,  and  an  intention  is  clearly 
expressed  in  his  wiU  to  exercise  that  power,  it  will  be  sufficient  to 
raise  a  case  of  election  (k).  The  familiar  illustration  was  that  of  a 
devise  by  a  testator,  having  an  absolute  power  to  dispose  of  an  estate, 
to  his  heir;  in  this  case,  before  the  Inheritance  Act,  1833,  the  heir 
would  have  taken  by  descent,  and  the  devise  would  have  been 
inoperative,  whether  the  heir  admitted  or  disputed  the  wiU;  yet, 
if  the  testator  in  his  will  devised  an  estate  belonging  to  the  heir  to  a 
third  party  the  heir  would  have  been  put  to  his  election  between 
the  estate  devised,  which  came  to  him  by  the  bounty  of  the  testator, 
and  his  own  claims  so  far  as  adverse  to  the  will. 

§  1095.  It  was,  at  one  time,  supposed,  that  the  doctrine  of  election 
was  not  applicable  to  the  case  of  persons  claiming  a  remote  interest 
in  property  disposed  of  in  a  manner  adverse  to  other  rights;  as,  for 
instance,  to  a  remainderman,  claiming  after  an  estate  tail  in  the 
property  disposed  of  (I).  But  this  qualification  is  long  since  over- 
ruled and  it  is  now  well  established,  that  the  doctrine  of  election  is 
equally  applicable  to  all  interests,  whether  they  are  immediate  or 
remote,  vested  or  contingent,  of  value  or  of  no  value,  and  whether 
these  interests  are  in  real  or  in  personal  estate  (m). 

§  1097.  Questions  have  also  arisen  in  courts  of  equity,  as  to  what 
acts  or  circumstances  should  be  deemed  an  election  on  the  part  of  the 
person  bound  to  make  it.  Upon  such  a  subject  no  general  rule  can  be 
laid  down;  but  every  case  must  be  left  to  be  decided  upon  its  own 
particular  circumstances  rather  than  upon  any  definite  abstract 
doctrine.  Lapse  of  time  alone  is  not  sufficient  to  conclude  a  party,  for 
until  he  is  called  upon  to  elect  he  may  enjoy  all  proprietary  rights 
over  the  respective  properties  (n) ;  and  before  he  can  be  called  upon 
to  elect  he  is  entitled  to  have  the  respective  values  of  the  properties 

{h)  Whistler  v.  Webster,  2  Ves.  Jun.  370;  Thellusson  v.  Woodford,  13  Ves.  220; 
Welby  V,  Welby,  2  Ves.  &  B.  199 ;  Mr.  Swanston'a-  note  to  Dillon  v.  Parker,  1  Swanst. 
407;  In  re  Brooksbank,  Beauclerk  v.  James,  20  Ch.  D.  160- 

(i)  Newman  v.  Newman,  1  Bro.  C.  C.  186 ;  1  Swanst.'  402,  note. 

(/c)Sugden  on  Po'wers,  ch.  11,  §  5,  par.  6;  Whistler  y.  Webster,  2  Ves.  Jun.. 367. 

{I)  See  Bor  v.  Bor,  cited  3  Bro.  Pari.  C.  167,  note;  1  Swanst.  407,  note, 

(m)  Wilson  v.  Lord  Townsend,  2  Ves.  Jun.  697 ;  Dillon  v.  Parker,  1  Swanst.  408, 
note;  Webb  v.  Earl  of  Shaftesbury,  7  Ves.  488. 

(n)  Spread  v.  Morgan,  11  H.  L.  C.  588  i-Seaton  v.  Seaton,  13  App.  Cas.  61. 


§  1094 — 1097b.]  ELECTION  and   satisfaction.  457 

ascertained  to  enable  him  to  form  a  correct  opinion  as  to  his  rights  (o). 
To  conclude  a  party  by  his  extra-judicial  acts  it  is  necessary  to  show 
that  he  knew  all  the  facts,  that  the  fact  that  he  was  called  upon 
to  exercise  his  choice  was  present  to  his  mind,  and  that  these  two 
circumstances  concurring  he  deliberately  made  his  choice  (p).  It  would 
perhaps  be  sufficient  if  it  could  be  shown  affirmatively  that  the  party 
had  made  his  election  intentionally  with  an  express  waiver  of  his  rights, 
quolibet  potest  renunoiare  jiiri  pro  se  introducto  (g).  The  acts  of  a 
party  entitled  to  a  future  interest  are  not  to  be  regarded  as  so  deliberate 
as  those  of  a  person  entitled  to  a  present  interest  (r).  When  this 
is  ascertained  affirmatively,  it  may  be  further  necessary  to  consider, 
whether  the  party  was  competent  to  make  an  election;  whether  he 
can  restore  the  other  persons  affected  by  his  claim  to  the  same 
situation,  as  if  the  acts  had  not  been  performed,  or  the  acquiescence 
had  not  existed;  and,  whether  there  has  been  such  a  lapse  of  time  as 
ought  to  preclude  the  court  from  entering  upon  such  inquiries,  upon 
its  general  doctrine  of  not  entertaining  suits  upon  stale  demands,  or 
after  long  delays  (s). 

§  1097a.  The  doctrine  being  based  upon  compensation,  there  can 
be  no  election  where  there  is  no  fund  out  of  which  the  disappointed 
party  is  to  be  compensated  (t).  Where  the  gift  is  tainted  with  illegality, 
motives  of  policy  prevent  the  operation  of  the  doctrine  of  election,  for 
that  might  attain  illegal  ends  by  indirect  means  (w). 

§  1097f?.  In  the  case  of  infants,  the  court  will  elect  as  a  result 
of  enquiries  in  chambers  or  upon  the  evidence  adduced  in  court  (a;) ; 
and  the  same  practice  used  to  be  followed  in  the  case  of  married 
women  prior  to  the  passing  of  the  Married  Women's  Property  Act, 
1882  (y).  In  the  case  of  lunatics  so  found  by  inquisition,  the  com- 
mittee of  the  estate  acts  under  the  sanction  of  the  Lords  Justices 
sitting  in  Lunacy  (z).  In  the  case  of  other  lunatics,  the  court  itself 
exercises  the  right  to  elect  (a).  In  the  case  of  a  married  woman 
restrained  from  anticipation,  the  fetter  may  now  be  removed  to  enable 
her  to  make  an  election  (b). 

(o)  Whistler  v.  Webster,  2  Ves.  Jun.  36T;,  Douglas  v.  Douglas,  L.  E.  12  Eq.  617 ; 
Wilson  V.  Thornbury,  L.  E.  10  Ch.  239.  . 

(p)  Spread  v.  Morgan,  11  H.  L.  C.  588;  Wilson  v.  Thornbury,  L.  E.  10  Ch.  239. 

(9)  See  per  Parke,  B.,  Kelly  v.  Solari,  9  M.  &  W.  54,  58,  59. 

(r)  Padbury  v.  Clark,  2  Mac.  &  G.  298. 

(s)  Mr.  Swanaton's  note  to  Dillon  v.  Parker,  1  Swanat.  382,  where  the  principal 
authorities  are  collected.     See  Brice  v.  Brice,  2  Moll.  21. 

(t)  Woolridge  v.  Woolridge,  Johns.  63;  Churchill  v.  Churchill,  L.  E.  5  Eq.  44; 
In  re  Vardon's  Trusts,  31  Ch.  D.  275;  Haynes  v.  Foster,  [1901]  1  Ch.  361. 

(u)  In  re  Oliver's  Settlement,  Evered  v.  Leigh,  [1905]  1  Ch.  191. 

(x)  Lamb  v.  Lamb,  5  W.  E.  772. 

(y)  Wilson  v.  Lord  Townshend,  2  Vea.  Jun.  693;  Cooper  v.  Cooper,  L.  E.  7 
H.  L.  63. 

-  {z)  In  re  Hewson,  23  L.  3.  Ch.'256.  (o)  Wilder  v.  Piggott,  22  Ch.  D.  263 

(b)  Conveyancing  Act,  1881,  a.  39.  See  as  to  the  old  law,  Robinson  v.  Wheel- 
right,  6  De  G.  M.  &  G.  635. 


458  EQUITY    JURISPRUDENCE.  [CH.    XXIX. 

§  1099.  These  remarks  may  suffice  on  the  subject  of  election,  a 
doctrine  of  no  inconsiderable  nicety  and  difficulty  in  its  natural 
administration  in  equity;  and  we  shall  now  proceed  to  the  kindred 
doctrine  of  Satisfaction.  Satisfaction  may  be  defined  in  equity  to  be 
the  donation  of  a  thing,  with  the  intention  expressed  or  implied  that 
it  is  to  be  an  extinguishment  of  some  existing  right  or  claim  of  the 
donee.  It  usually  arises  in  courts  of  equity  as  a  matter  of  presumption, 
where  a  man,  being  under  an  obligation  to  do  an  act  (as  to  pay 
money),  does  that  by  wiU,  which  is  capable  of  being  considered  as  a 
performance  or  satisfaction  of  it,  the  thing  performed  being  ejusdem 
generis  with  that  which  he  has  engaged  to  perform.  Under  such 
circumstances,  and  in  the  absence  of  all  countervailing  circumstances, 
the  ordinary  presumption  in  courts  of  equity  is,  that  the  testator  has 
done  the  act  in  satisfaction  of  his  obligation.  Although  the  original 
text  has  been  allowed  to  stand  unaltered,  it  is  advisable  to  warn  the 
student  that  there  is  a  branch  of  equity  known  as  performance  which 
has  nothing  to  do  with  satisfaction,  and  is  discussed  hereafter. 
Another  matter  in  respect  of  which  the  student  may  be  led  astray  is 
the  language  of  the  judgments  which  speak  of  the  gift  being  adeemed. 
In  ademption  properly  so  called  the  subject-matter  is  destroyed,  in 
satisfaction  it  exists,  but  one  provision  is  held  to  be  a  substitute  for 
another. 

§  1100.  It  is  certainly  not  a  little  difficult  to  vindicate  the  extent 
to  which  this  doctrine  has  been  carried  in  courts  of  equity,  as  a 
matter  of  presumption.  What  is  given  by  a  will  ought,  from  the 
cliaracter  of  the  instrument,  ordinarily  to  be  deemed  as  given  as  a 
mere  bounty,  unless  a  contrary  intention  is  apparent  on  the  face  of 
the  instrument  (c) ;  or,  as  it  has  been  well  expressed,  whatever  is  given 
by  a  will  is,  prima  facie,  to  be  intended  as  a  bounty  and 
benevolence  (d).  Under  such  circumstances,  the  natural  course  of 
reasoning  would  be,  that,  in  order  to  displace  this  presumption,  a 
clear  expression  of  a  contrary  intention  should  be  made  out  on  the  face 
of  the  will  (e).  But  the  doctrine  of  courts  of  equity  has  proceeded 
upon  an  opposite  ground ;  and  the  donation  is  held  to  be  a  satisfaction, 
unless  that  conclusion  is. repelled  by  the  nature  of  the  gift,  the  terms 
of  the  will,  or  the  attendant  circumstances.  For  it  has  been  said  that 
-a  man  shall  be  intended  to  be  just,  before  he  is  kind ;  and  when  two 
duties  happen  to  interfere  at  the  same  point  of  time,  that  which  is 
the  most  honest  and  best  is  to  be  preferred  (/). 

§  1101.  But  although  this  may  be  fair  reasoning,  where  there  is  a 
deficiency  of  assets  to  satisfy  both  claims  or  duties,  yet  it  is  utterly  • 

(c)  Clarke  v.  Sewell,  3  Atk.  96. 

(d)  Eastewoode  v.  Vincke,  2  P.  "Will.  616. 

(e)  But  see  Weall  v.  Rice,  2  Eusa.  &  Myl.  267,  where  Sir  John  Leach  intimates 
that  the  rule  is  as  it  ought  to  be,  but  without  stating  any  reason.  See  also  Jones  v. 
Morgan,  2  Y.  &  Coll.  403,  412. 

(/)  Per  Lord  Cottenham,  L.C.,  in  Pym  v.  Lockyer,  5  Myl.  &  Cr.  29,  35 


§    1099 — 1103.]  ELECTION    AND    SATISFACTION.  459 

impossible  to  apply  it  to  the  great  mass  of  eases  in  whieh  the  doctrine 
of  implied  satisfaction  has  prevailed,  and  where  there  has  been  no 
deficiency  of  assets  to  discharge  all  the  claims.  The  truth  is,  that  the 
doctrine  was  introduced  originally  upon  very  unsatisfactory  grounds; 
and  it  now  stands  more  upon  authority  than  upon  principle.  And 
a  strong  disposition  has  been  manifested  in  modem  times  not  to 
enlarge  the  sphere  of  its  operation;  but  to  lay  hold  of  any  circum- 
stances to  establish  exceptions  to  it  (g).  We  shall  presently  see 
that  it  is  somewhat  difierently  applied  in  cases  of  creditors,  properly 
so  called,  from  what  it  is  in  cases  of  portions  and  advancements  to 
children;  for,  in  the  latter  cases,  the  presumption  of  satisfaction 
is  more  readily  entertained  and  acted  upon  more  extensively  than  in 
the  former. 

§  1102.  It  is  obvious,  from  this  description  of  the  doctrine  of  satis- 
faction, that  the  presumption  is  not  conclusive,  but  may  be  rebutted 
by  other  circumstances  attending  the  will.  If  the  benefit  given  to 
the  donee,  possessing  the  right  or  claim,  is  different  in  specie  from  that 
to  which  he  is  entitled  (h),  the  presumption  of  its  being  given  in  satis- 
faction will  not  arise,  unless  there  be  an  express  declaration  («'),  or  a 
clear  inference  from  other  parts  of  the  will,  that  such  is  the  intention 
of  the  testator.  The  presumption  may  be  rebutted,  not  only  by 
intrinsic  evidence,  thus  derived  from  the  terms  of  the  will  itself,  but  it 
may  also  be  rebutted  or  confirmed  by  extrinsic  evidence,  as  by  declara- 
tions of  the  testator  touching  the  subject,  or  by  written  papers, 
explaining  or  confirming  the  intention  (fc). 

§  1103.  Thus,  for  example,  land  given  by  a  will  is  not  deemed  to 
be  given  in  satisfaction  of  money  due  to  the  devisee ;  and  money 
given  by  a  will  is  not  deemed  to  be  given  ifi  satisfaction  of  an  interest 
of  the  legatee  in  land ;  unless  there  is  something  more  in  the  will 
explanatory  of  the  intention  of  the  testator.  Accordingly,  it  was  laid 
down  by  Lord  Hardwicke,  in  respect  to  the  doctrine  of  satisfaction,  that, 
when  a  bequest  is  taken  to  be  by  way  of  satisfaction  for  money  already 
due  to  the  donee,  the  thing  given  in  satisfaction  must  be  of  the  same 
nature,  and  attended  with  the  same  certainty,  as  the  thing  in  lieu  of 
which  it  is  given;  and  that  land  is  not  to  be  taken  in  satisfaction  for 
money,  or  money  for  land  (I) ;  or  land  of  one  tenure  for  land  of  another 
tenure  (m). 

(g)  Clarke  v.  Sewell,  3  Atk.  97;  Sowden  v.  Sowden,  1  Cox,  165;  Lady  Thynne 
V.  Earl  of  Glengall,  2  H.  L.  C.  131. 

(h)  Chaplin  v.  Chaplin,  3  P.  Wms.  245 ;  Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms. 
211,  s.c.  nom.  hechmere  v.  Lady  Lechmere,  Caa.  t.  Talb.  80;  Alleyn  v.  Alleyn,  2  Ves. 
Sen.  37. 

(i)  See  Prime  v.  Stebbing,  2  Ves.  Sen.  409. 

(k)  Kirk  v.  Eddowes,  3  Hare,  509;  Powys  v.  Mansfield,  3  M.  &  C.  359;  In  re 
Lacon,  Lacon  v.  Lacon,  [1891]  2  Ch.  482 ;  In  re  Scott,  Langton  v.  Scott,  [1903] 
1  Ch.  1.     See  In  re  Shields,  Corbould-Ellis  v.  Dales,  [1912]  1  Ch.  591. 

(l)  Bellasis  v.  Uthwatt,  1  Atk.  426,  427;  Chaplin  v.  Chaplin,  3  P.  Will.  247; 
Alleyn  v.  Alleyn,  2  Ve8.  Sen.  37.  (to)  Pinnell  v.  Hallett,  Ambler,  106. 


460  EQUITY    JURISPKUDENCE.  [CH.    XXIX. 

§  1104.  In  regard  also  to  cases,  where  tKe  thing  given  is  ejuadem 
generis  with  that  due  to  the  donee,  the  presumption  that  it  is  given 
in  satisfaction,  does  not  necessarily  arise ;  nor  is  it,  as  has  been  already 
intimated,  universally  conclusive.  To  make  the  presumption  of  satis- 
faction hold  in  any  such  cases,  it  is  necessary  that  the  thing  substituted 
should  not  be  less  beneficial,  either  in  amount,  or  certainty,  or  value, 
or  time  of  enjoyment,  or  otherwise,  than  the  thing  due  or  contracted 
for  (n).  The  notion  of  satisfaction  implies  the  doing  or  giving  of  some- 
thing equivalent  to  the  right  extinguished.  And  it  would  be  a  very 
unjustifiable  course  to  arraign  the  justice  of  the  testator,  by  presuming 
that  he  meant  to  ask  a  favour,  instead  of  performing  a  duty. 

§  1105.  But  where  the  thing  substituted  is  ejusdem  generis,  is  of 
equal  or  of  greater  value,  and  much  more  beneficial  to  the  donee,  than 
his  own  claim ;  there  the  presumption  of  an  intended  satisfaction  is 
generally  allowed  to  prevail.  Whether  the  presumption  of  an  intended 
satisfaction,  pro  tanto,  ought  to  be  made  in  any  case,  where  the  things 
are  ejusdevi  generis,  but  less  than  the  claim  of  the  donee,  is  a  matter 
upon  which  some  diversity  of  opinion  once  existed ;  but  the  current  of 
modem  authority  has  established  the  presumption  beyond  dispute  (o). 

§  1106.  The  learned  author  had  in  common  with  equally  eminent 
equity  practitioners  failed  to  observe  strictly  the  distinction  between 
satisfaction  properly  so  called  and  cases  of  the  performance  of  agree- 
ments and  covenants,  as  the  cases  he  cites  show,  nor  is  the  confusion 
always  absent  at  the  present  day.  The  best  exposition,  subject  to  one 
correction,  of  the  distinction  is  contained  in  the  judgment  of  Sir 
Thomas  Plumer  (p).  "  An  important  distinction  exists  between  satis- 
faction and  performance.  Satisfaction  supposed  intention;  it  is  some- 
thing different  from  the  subject  of  the  contract,  and  substituted  for  it ; 
and  the  question  always  arises,  was  the  thing  done  intended  as  a  sub- 
stitute for  the  thing  covenanted?  a  question  entirely  of  intent:  but 
with  reference  to  performance,  the  question  is.  Has  that  identical  act 
which  the  party  contracted  to  do  been  done?  "  The. passage  should  be 
qualified,  as  a  substantial  compliance  with  the  terms  of  the  contract  is 
sufficient  (q).  Some  cases,  which  have  actually  passed  into  judgment, 
may  illustrate  this  distinction.  Thus,  where  A.  on  his  marriage,  by 
articles,  covenant«d  to  leave  his  wife  B.,  if  she  should  survive  him, 
£620;  and  that  his  executor  should  pay  it  in  three  months  after  his 
decease;  and  A.  died  intestate,  and  without  issue,  whereby  his  wife  (who 
survived  him)  became  entitled  to  a  moiety  of  his  personal  estate,  which 
was  more  than  the  £620;  the  question  arose,  whether  the  distributive 

(n)  Blandy  v.  Widmore,  1  P.  Will.  324,  Mr.  Cox's  note  (1);  Lechmere  v.  Earl  of 
Carlisle,  3  P.  Will.  211;  Lechmere  v.  Lady  Lechmere,  Gas.  t.  Talb.  80. 

(o)  Lady  Thynne  v.  Earl  of  Glengall,  2  H.  L.  C.  131;  Atkinson  v.  Littlewood, 
L.  R.  18  Eq.  593;  In  re  Blundell,  Blundell  v.  Blundell,  [1906]  2  Ch.  222. 

(p)  Goldsmid  v.  Goldsmid,  1  Swanst.  211,  219. 

(g)  Ga-r-thshore  v.  Chalie,  10  Ves.  1;  Bengough  v.  Walker,  15  Ves.  507. 


§    1104 1109.]  ELECTION   AND    SATISFACTION.  461 

share  of  B.  should  be  deemed  a  satisfaction,  or  rather  a  due  performance, 
of  the  covenant;  for  the  covenant  was  not  broken,  the  wife  being 
administratrix.  And  it  was  held  to  be  a  due  performance,  although  it 
is  called  in  the  report  a  satisfaction  (r).  So,  where  A.  covenanted,  by 
marriage  articles,  that  his  executors  should,  in  three  months  after  his 
decease,  pay  his  wife  £3,000 ;  and  by  his  will  he  gave  all  his  property 
to  his  executors,  in  trust,  to  divide  it  in  such  ways,  shares,  and  propor- 
tions as  to  them  should  appear  right.  The  trust  failed,  whereby  his 
estate  became  divisible  according  to  the  Statute  of  Distributions;  and 
his  wife  survived  him.  It  was  held,  that  her  distributive  share,  being 
greater  than  £3,000,  was  a  satisfaction  of  the  covenant  (s). 

§  1107.  The  ground  of  each  of  these  decisions  seems  to  have  been 
that  there  was  no  breach  of  the  covenant;  and  as  the  widow,  by  mere 
operation  of  law,  through  the  Statute  of  Distributions,  received  from 
her  husband  a  larger  sum  than  he  had  covenanted  to  pay  her,  it  ought 
to  be  held  a  full  performance  of  his  covenant.  These  decisions  do  not 
seem  to  stand  on  a  very  firm  foundation,  as  illustrations  of  the  doctrine 
of  satisfaction ;  for  (as  has  been  well  observed)  considerable  doubt 
might  have  been  entertained,  whether  of  two  claims  so  distinct,  the 
satisfaction  of  one  ought  to  be  considered  as  a  satisfaction  of  the  other. 
But  courts  of  equity  would  now  hardly  deem  it  fit  to  re-examine,  and 
upon  principle  to  discuss  the  point  thus  settled  by  them,  which  has  been 
at  rest  for  more  than  two  centuries  (t). 

§  1108.  And  here  it  may  be  remarked,  that  the  doctrine  of  satisfac- 
tion, and  also  of  performance  of  covenants,  arising  from  bequests  in 
wills,  was  well  known  in  the  civil  law  (u) ;  and  it  was  probably  derived 
from  that  source  with  some  variations  into  our  jurisprudence.  Thus, 
in  the  Digest,  a  case  is  put  of  a  father,  covenanting  on  his  daughter's 
marriage  to  give  her  a  certain  sum,  as  a  dotal  portion,  and  afterwards 
leaving  a  legacy  to  her  to  the  same  amount ;  and  it  was  there  held  that 
it  amounted  to  a  satisfaction  of  the  portion  (a;).  And  other  cases  are 
there  put  of  a  like  nature,  where  parol  evidence  was  held  admissible  to 
establish  the  intention  of  satisfaction  (y). 

§  1109.  Questions  of  satisfaction  usually  come  before  courts  of 
equity  in  three  classes  of  cases :  (1)  in  cases  of  portions  secured  by  a 
marriage  settlement;  (2)  in  cases  of  portions  given  by  will  and  an 
advancement  to  the  donee  afterwards  in  the  life  of  the  testator;  (3)  in 
cases  of  legacies  to  creditors.  It  may  be  convenient  as  well  as  proper, 
in  our  brief  survey  of  this  subject,  to  examine  the  doctrine  separately 
in  respect  to  each  of  these  classes;  as  the  application  of  it  is  not,  or 

(r)  Blandy  v.  Widmore,  1  P.  Will.  324,  and  Mr.  Cox'e  note  (1). 
(s)  Goldsmid  v.  Goldsmid,  1  Swanst.  211. 

(t)  See  per  Cozens-Hardy,  M.B.,  In  re  Roby,  Howlett  v.  Newington,  [1908]  1  Ch. 
71,  74. 

(u)  See  post,  §  1114. 

(a:)  Dig.  Lib.  30,  tit.  1,  f.  84,  §  6. 

(i;)  Dig.  Lib.  30,  tit.  1,  f.  123. 


462  EQUITY   JURISPRUDENCE.  [CH.    XXIX. 

at  least  may  not  be,  precisely  the  same  throiighaut  in  all  of  them  (n). 
The  first  class  may  be  illustrated  by  stating  the  case  where  a  portion 
or  provision  is  secured  to  a  child  by  marriage  settlement,  or  otherwise ; 
and  the  parent  or  person  standing  in  loco  parentis,  afterwards  by  will 
gives  the  same  child  a  legacy,  or  share  of  residue,  without  expressly 
directing  it  to  be  in  satisfaction  of  such  portion  or  provision.  In  such 
a  case,  if  the  gift  be  of  a  sum  as  great  as,  or  greater  than,  the  portion  or 
provision;  if  it  be  ejusdem  generis;  if  it  be  equally  certain  with  the 
latter,  and  subject  to  no  contingency,  not  applicable  to  both ;  and  if  it 
be  shown  that  it  is  not  given  for  a  different  purpose ;  then  it  will  be 
deemed  a  satisfaction  in  full  or  pro  tanto  (a). 

§  1110.  We  have  already  had  occasion  to  intimate  the  doubts,  which 
may  be  justly  entertained,  as  to  the  correctness  of  the  reasoning,  by 
which  courts  of  equity  have  been  led  to  these  results.  As  an  original 
question,  at  least  where  the  assets  are  suf&cient  to  satisfy  the  portion, 
as  well  as  the  legacy,  the  natural  presumption  would  be,  that  the 
testator  intended  the  latter  as  a  bounty,  in  addition  to  the  duty  already 
contracted  for;  a  bounty  fit  for  a  parent  to  bestow,  and  far  more 
reputable  to  his  sense  of  moral  and  religious  obligation,  than  a  mere  dry 
performance  of  his  positive  contract,  recognized  by  law,  and  resting  on 
a  valuable  consideration.  But  here  as  well  as  in  many  other  cases,  we 
must  be  content  to  declare,  Ita  lex  scripta  est ; — It  is  established, 
although  it  may  not  be  entirely  approved.  Even  a  small  variance  in  the 
time  of  payment,  or  other  trifling  differences,  where  the  value  is  sub- 
stantially the  same,  will  not  vary  the  application  of  the  rule,  as  the 
present  incUnation  of  courts  of  equity  is  against  raising  double  por- 
tions (b).  Being  based  upon  the  equitable  presumption  against  double 
portions,  it  is  displaced  where  one  legatee  is  a  stranger. (c). 

§  1111.  The  second  class  may  be  illustrated'by  reference  to  the  case, 
where  a  parent  or  other  person  in  loco  parentis,  bequeaths  a  legacy  or 
share  of  residue  to  a  child  or  grandchild,  and  afterwards  in  his  lifetime, 
gives  a  portion,  or  makes  a  provision  for  the  same  child  or  grandchild, 
without  expressing  it  to  be  in  lieu  of  the  legacy.  In  such  a  case,  the 
portion  so  received,  or  the  provision  so  made,  on  marriage  or  otherwise 
(if  it  be  certain,  and  not  merely  contingent,  if  no  other  distinct  object 
be  pointed  out,  and  if  it  be  ejusdem  generis),  will  be  deemed  a  satisfac- 
tion in  whole  or  in  part  of  the  testamentary  gift,  or,  as  it  is  sometimes 

(«)  See  HinchcUjfe  v.  Hinchdijfe,  3  Ves.  527,  where  Lord  Alvanley  intimated  that 
there  might  be  a  difference  between  cases  of  portions  by  settlement,  and  cases  of  lega- 
cies by  will,  as  to  subsequent  advancements. 

(o)  Lady  Thynne  v.  Earl  of  Glengall,  2  H.  L.  C.  131;  Atkinson  v.  Littlewood, 
L.  E.  18  Bq.  593;  In  re  Tussaud,  Tussaud  v.  Tussaud,  9  Ch.  D.  363;  Montague  \. 
Earl  of  Sandwich,  32  Ch.  D.  525;  In  re  Blundell,  Blundell  v.  Blundell,  [1906]  2  Ch 
222. 

(fc)  Lady  Thynne  v.  Earl  of  Glengall,  2  H.  L.  C.  131. 

(c)  In  re  Heather,  Pumfrey  v.  Fryer,  [1906]  2  Ch.  230. 


§    1110 — 1113.]  ELECTION  AND    SATISFACTION.  463 

expressed,  it  will  be  held  an  ademption  of  the  legacy  (d).  The  expres- 
sion in  loco  parentis  in  this  connection  has  been  defined  by  Lord  Cotten- 
ham,  L.C.,  in  the  following  words  :  "  No  doubt  the  authorities  leave,  in 
some  obscurity,  the  question  what  is  meant  by  the  expression,  univer- 
sally adopted  of  one  in  loco  parentis  "  (e).  Lord  Eldon,  however,  in 
Ex  parte  Pye,  has  given  to  it  a  definition  which  1  readily  adopt,  not  only 
because  it  proceeds  from  his  high  authority,  but  because  it  seems  to 
me  to  embrace  aU  that  is  necessary  to  work  out  and  carry  into  effect 
the  object  and  meaning  of  the  rule.  Lord  Eldon  says  (/)  it  is  a  person 
"  meaning  to  put  himself  in  loco  parentis,  in  the  situation  of  the  person 
described  as  the  lawful  father  of  the  child  ' ' ;  but  this  definition  must, 

1  conceive,  be  considered  as  applicable  to  those  parental  offices  and 
duties  to  which  the  subject  in  question  has  reference,  namely,  to  the 
office  and  duty  of  the  parent  to  make  provision  for  the  child.  The 
offices  and  duties  of  a  parent  are  infinitely  various,  some  having  no 
connection  whatever  with  making  a  provision  for  a  child ;  and  it  would 
be  most  illogical,  from  the  mere  exercise  of  any  of  such  offices  and  duties 
by  one  not  the  father,  to  infer  an  intention  in  such  person  to  assume  also 
the  duty  of  providing  for  the  child. ' '  A  brother  may  place  himself  in 
loco  parentis  to  his  brother  (g).  And  the  artificial  relationship  may 
exist  apart  from  ties  of  blood  (h).  The  parental  duty  of  providing  for  a 
child  exists  apart  from  minority  (i). 

§  1112.  The  ground  of  this  doctrine  seems  to  be,  that  every  such 
legacy  is  to  be  presumed  as  intended  by  the  testator  to  be  a  portion 
for  the  child  or  grandchild,  whether  called  so  or  not;  and  that,  after- 
wards, if  he  advances  the  same  sum  upon  the  child's  marriage,  or  on 
any  other  occasion,  he  does  it  to  accomplish  his  original  object,  as  a 
portion;  and  that,  under  such  circumstances,  it  ought  to  be  deemed 
an  intended  satisfaction  or  ademption  of  the  legacy,  rather  than  an 
intended  double  portion.  And,  where  the  sum  advanced  is  less  than 
the  legacy,  still  it  may  fairly  be  presumed,  that  the  testator,  having 
acted  merely  in  the  discharge  of  a  moral  obligation,  may,  from  a  change 
of  his  own  views,  or  of  his  own  circumstances,  be  satisfied  that  the 
portion  ought  to  be  less  (k). 

§  1113.  Now,  to  say  the  least  of  it,  this  is  extremely  artificial 
reasoning,  and  such  as  an  ingenuous  mind  may  find  it  difficult  to 
follow.     Lord  Eldon  has  so  characterized  it.     After  admitting  it  to  be 

(d)  Pym  v.  Lockyer,  5  M.  &  Cr.  20;  Agnew  v.  Pope,  1  De  G.  &  J.  49;  Monte- 
fiore  v.  Guedalla,  1  De  G.  F.  &  J.  93;  Leighton  v.  Leighton,  L.  E.  18  Eq.  459;  In  re 
Pollock,  Pollock  V.  Worrall,  28  Ch.  D.  552. 

(e)  See  Powys  v.  Mansfield,  3  M.  &  Cr.  359,  366,  367. 
(/)  18  Ves.  140,  154. 

(g)  Monck  v.  Lord  Monck,  1  Ball  &  B.  298. 

(h)  In  re  Pollock,  Pollock  v.  Pollock,  28  Ch.  D.  552. 

(j)  Booker  v.  Allen,  2  Euss.  &  M.  270;  In  re  Lacon,  Lacon  v.  Lacon,  [1891] 

2  Ch.  482. 

(fc)  Pym  V.  Lockyer,  5  M.  &  Cr.  29;  Hopwood  v.  Hopwood,  7  H.  L.  C.  728. 


464  EQUITY  JURISPEUDBNCE.  [CH.  XXIX. 

the  unquestionable  doctrine  of  the  court,  that,  where  a  parent  gives  a 
legacy  to  a  child,  not  stating  the  purpose  with  reference  to  which  he 
gives  it,  the  court  understands  him  as  giving  it  as  a  portion,  he  has 
strongly  remarked:  "  And,  by  a  sort  of  artificial  rule,  in  the  appUca- 
tion  of  which  legitimate  children  have  been  very  harshly  treated,  upon 
an  artificial  notion  that  the  father  is  paying  a  debt  of  nature,  and  a  sort 
of  feeling,  upon  what  is  called  a  leaning  against  double  portions,  if  the 
father  afterwards  advances  a  portion  on  the  marriage  of  that  child, 
though  of  less  amount,  it  is  a  satisfaction  of  the  whole  or  in  part.  And, 
in  some  cases,  it  has  gone  a  length  consistent  with  the  principle,  but 
showing  the  fallacy  of  much  of  the  reasoning,  that  the  portion,  though 
much  less  than  the  legacy,  has  been  held  a  satisfaction  in  some  instances, 
upon  this  ground,  that  the  father,  owing  what  is  called  a  debt  of  nature, 
is  the  judge  of  that  provision  by  which  he  means  to  satisfy  it;  and 
although,  at  the  time  of  making  the  will,  he  thought  he  could  not  dis- 
charge that  debt  with  less  than  £10,000,  yet  by  a  change  of  his  circum- 
stances and  of  his  sentiments  upon  moral  obligation,  it  may  be  satisfied 
by  the  advance  of  a  portion  of  £5,000  "  (Z).  In  addition  to  this  strong 
language,  it  may  be  added,  that  courts  of  equity  make  out  this  sort  of 
doctrine,  not  upon  any  clear  intention  of  the  test-ator  anywhere 
expressed  by  him,  but  they  first  create  the  intention,  and  then  make 
the  parent  suggest  all  the  morals  and  equities  of  the  case,  upon  their 
own  artificial  modes  of  reasoning,  of  wliich  it  is  not  too  much  to  say, 
that  scarcely  any  testator  could  ever  have  dreamed  {m). 

§  1114.  It  has  been  supposed,  that  the  origin  of  this  particular 
doctrine  is  to  be  found  in  the  civil  law,  and  that  it  was  transferred  from 
hence  into  the  equity  jurisprudence  of  England  (n).  But  Lord  Thurlow 
has  expressed  a  doubt,  whether  the  doctrine  of  the  civil  law  proceeds  so 
far,  and  whether  it  is  there  taken  up  on  the  idea  of  a  debt,  or  is  not 
rather  considered  as  a  presumption,  repellable  by  evidence  (o).  The 
language  attributed  to  his  lordship  on  this  occasion  seems  not  exactly 
to  express  his  true  meaning ;  for,  in  the  equity  jurisprudence  of  England 
also,  the  presumption  may  be  rebutted  by  evidence,  as  the  same  judge 
pointed  out  in  a  subsequent  case  (p).  His  meaning  probably  was,  that 
the  matter  was  a  mere  matter  of  presumption,  arising  from  the  whole 
circumstances  of  the  will ;  and  that  there  was  no  such  rule  in  the  civil 
law  as  that,  in  English  jurisprudence,  namely,  that,  prima  facie,  such 
a  portion,  subsequently  given,  was  an  ademption  of  the  legacy.  No  one 
can  doubt  that,  in  many  cases,  such  a  presumption  may  arise  from  the 
circumstances.     As,  for  example,  in  a  case  put  in  the  civil  law.      A 

(I)  Ex  parte  Pye  and  Ex  parte  Duhost,  18  Vea.  151. 
(m)  Grave  v.  Earl  of  Salisbury,  1  Bro.  C.  C.  425. 
(n)  See  ante,  §  1108. 

(o)  Grave  v.  Earl  of  Salisbury,  1  Bro.  C.  C.  425,  427. 

(p)  Debeze  v.  Mann,  1  Cox,  346,  s.c.  2  Bro.  C.  C.  165,  519.  See  also  In  re 
Scott,  Langton  v.  Scott,  [1908]  1  Ch.  1. 


§    1114 1116.]  ELECTION    AND    SATISFACTION.  465 

father  by  his  will  devised  certain  lands  to  his  daughter,  and  afterwards 
gave  the  same  lands  to  her  as  a  marriage  portion.  It  was  held  to  be  an 
ademption  of  the  devise.  "  Filia  legatorum  non  habet  actionem,  si  ea, 
quae  ei  in  testamento  reliquit,  vivus  pater  postea  in  dotem  dederit  "  (g). 
So,  it  was  held  in  the  same  law,  to  be  a  revocation  of  the  legacy  of  a 
debt,  if  it  was  afterwards  collected  of  the  debtor  by  the  testator  in  his 
lifetime.  The  like  rule  was  applied,  where,  after  the  devise  of  specific 
property,  the  testator  alienated  in  his  lifetime.  "  Testator  supervivens, 
si  earn  rem,  quam  reliquerat,  vendiderit,  extinguitur  fideicommissum. " 
These  cases  are  so  obvious,  as  necessary  and  intentional  ademption  of 
the  legacies,  that  they  require  no  artificial  rules  of  interpretation  to 
expound  the  intent.  And  yet  the  civil  law  was  so  far  fro-m  favouring 
ademptions,  that,  even  in  these  cases,  it  admitted  proof  that  the  tes- 
tator did  not  intend  to  adeem  the  legacy ;  the  rule  being,  "  Si  rem  suam 
legaverit  testator,  posteaque  earn  alienaverit;  si  non  adimendi  animo 
vendidit,  nihilominus  deberi  "  (r).  And  again:  "  Si  rem  suam  testator 
legaverit  eamque  necessitate  urgente  alienaverit,  fideicommissum  peti 
posse,  nisi  probetur,  adimere  ei  testatorem  voluisse.  Probationem  autem 
mutatffi  voluntatis  ab  hseredibus  exigendam  "  (g).  These  cases  are 
sufficient  to  show  how  widely  variant  the  doctrine  on  this  subject  is  in 
the  civil  law  from  that  which  now  prevails  in  equity. 

§  1115.  There  aj"e,  however,  in  equity  jurisprudence,  certain  estab- 
lished exceptions  to  this  doctrine  of  constructive  satisfaction,  or  ademp- 
tion of  legacies,  which  deserve  particular  notice.  In  the  first  place,  at 
one  time  it  was  thought  not  to  apply  to  the  case  of  a  devisee  of  a  mere 
residue ;  for  it  was  said,  that  a  residue  is  always  changing.  It  might 
amount  to  something  or  be  nothing ;  and  therefore  no  fair  presumption 
could  arise  of  its  being  an  intended  satisfaction  or  ademption.  This 
opinion  was  shaken  in  Lady  Thynne  v.  Earl  of  Glengall  (i),  in  which  it 
was  held,  after  a  full  review  of  all  the  authorities,  that  the  bequest  of 
a  residue  will,  according  to  its  amount,  be  a  satisfaction  of  a  portion, 
either  in  full,  or  pro  tanto,  and  the  earlier  cases  to  the  contrary  were 
not  approved.  But  in  Montefiore  v.  GuedaUa  (u)  the  question  was 
again  considered  and  the  decisions  reviewed,  and  the  rule  declared  to 
be  one  of  intention,  whether,  and  how  far,  a  residue  shall  be  taken  as 
adeemed  by  subsequent  portions  given,  or  settled,  and  that  it  should 
not  depend  upon  the  mere  uncertainty  of  the  residue,  or  upon  slight 
differences  between  the  trusts  and  the  residue,  and  the  trusts  of  the 
settlement.     The  same  rule  is  applied  to  all  questions  of  ademption. 

§  1116.  Another  exception  to  this  doctrine  of  constructive  ademp- 
tion of  legacies  may  be  gathered  from  the  qualification  already  annexed 

(g)  Cod.  Lib.  6,  tit.  37,  1.  U. 
(r)  Inst.  Lib.  2,  tit.  20,  §  12;  ibid.  §  §  10,  11. 
•  is)  Dig.  Lib.  32,  tit.  3,  f.  11,  §  12;  Pothier,  Pand.  Lib.  34,  tit.  i,  n.  8. 
(t)  2  H.  L.  C.  181. 
(u)  1  De  G.  F.  &  J.  93. 
E.J.  30 


466  EQUITY    JURISPKUDENCB.  [CH.    XXIX. 

to  the  enunciation  of  it  in  the  preceding  pages.  It  is  there  Hmited  to 
the  case  of  a  parent,  or  of  a  person  standing  in  loco  parentis.  In  relation 
to  parents,  it  is  applicable  only  to  legitimate  children;  and  in  relation 
to  persons  standing  in  loco  parentis,  it  is  also  applicable  generally  to 
legitimate  children  only,  unless  the  party  has  voluntarily  placed  himself 
in  loco  parentis  to  a  legatee,  not  standing  either  naturally  or  judicially 
in  that  predicament.  All  other  persons  are,  in  contemplation  of  la\\-, 
treated  as  strangers  to  the  testator  (x). 

§  1117.  But  this  doctrine  of  the  constructive  ademption  of  legacies 
has  never  been  applied  to  legacies  to  mere  strangers,  unless  under  very 
peculiar  circumstances,  such  as  where  the  legacy  is  given  for  a  par- 
ticular purpose,  and  a  gift  is  afterwards,  in  the  lifetime  of  the  partj', 
made  exactly  for  the  same  purpose,  and  for  none  other  (y).  Except 
in  cases  standing  upon  such  peculiar  circumstances,  and  which,  there- 
fore, seem  to  present  a  very  cogent  presumption  of  an  intentional 
ademption,  the  rule  prevails,  that  a  legacy  to  a  stranger,  legitimate  or 
illegitimate,  is  not  adeemed  by  a  subsequent  portion  or  advancement  in 
the  lifetime  of  the  testator,  without  some  expression  of  such  intent 
manifested  in  the  instrument,  or  by  some  writing  accompanying  the 
portion  or  advancement  and  charging  the  conscience  of  the  bene- 
ficiary (2). 

§  1118.  The  reason  commonly  assigned  for  this  doctrine  is,  that,  as 
there  is  no  such  obligation  upon  such  a  testator  to  provide  for  the  legatee, 
as  subsists  between  a  parent  and  child,  no  inference  can  arise,  that  the 
testator  intended,  by  the  subsequent  gift  or  advancement,  to  perform 
any  such  duty  in  prensenti,  instead  of  performing  it  at  his  death ;  and 
there  is  no  reason  why  a  person  may  not  be  entitled  to  as  many  gifts 
as  another  may  choose  to  bestow  upon  him.  That  this  reasoning  is 
extremely  unsatisfactory,  as  well  as  artificial,  may  be  unhesitatingly 
pronounced.  It  leads  to  this  extraordinary  conclusion,  that  a  testator, 
in  intendment  of  law,  means  to  be  more  bountiful  to-  strangers  than  to 
his  own  children;  that,  by  a  legacy  to  his  children,  he  means  not  to 
gratify  his  feelings  or  affections,  but  merely  to  perform  his  duty ;  but 
that,  by  a  legacy  to  strangers,  he  means  to  gratify  his  feelings,  affections, 
or  caprices,  without  the  slightest  reference  to  his  duty.  What  makes 
the  doctrine  still  more  difficult  to  be  supported  upon  any  general  reason- 
ing is,  that  grandchildren,  brothers,  sisters,  uncles,  aunts,  nephews,  and 
nieces,  as  well  as  natural  children,  are  deemed  strangers  to  the  testator 
in  the  sense  of  the  rule  (unless  he  has  placed  himself  towards  them  in 
loco  parentis);  and  that  they  are  in  a  better  condition,  not  only  than 
legitimate  children,  but  even  than  they  would  be  if  the  testator  formally 

(x)  Suisse  V.  Lord  Lowther,  2  Hare,  424;  affirmed  12  L.  J.  Ch.  315.     See  ante, 

§  nil. 

(j/)  Suisse  V.  Lord  Lowther,  2  Hare,  424,  affirmed  12  L.  J.  Ch.  315;  Pankhurst  v. 
Howell,  L.  E.  6  Ch.  136 ;  In  re  Pollock,  Pollock  v.  Worrall,  28  Ch.  D.  552. 
(z)  In  re  Shields,  Corbould  Ellis  v.  Dales,  [1912]  1  Ch.  591. 


§    lllV 1121.]  ELECTION    AND     SATISFACTION.  467 

acted  in  loco  parentis.  Considerations  and  consequences  like  these  may 
well  induce  us  to  pause  upon  the  original  propriety  of  the  doctrine. 
It  is,  however,  so  generally  established,  that  it  cannot  be  shaken,  but 
by  overthrowing  a  mass  of  authority,  which  no  judge  would  feel 
himself  at  liberty  to  disregard  (a). 

§  1119.  The  third  and  last  class  of  cases  to  which  we  have  alluded 
as  connected  with  the  doctrine  of  satisfaction,  is,  where  a  legacy  is 
given  to  a  creditor.  And  here,  the  general  rule  is,  that  where  the 
legacy  is  equal  to,  or  greater  in  amount  than  an  existing  debt,  where 
it  is  of  the  same  nature ;  where  it  is  certain,  and  not  contingent ;  and 
where  no  particular  motive  is  assigned  for  the  gift;  in  all  such  cases 
the  legacy  is  deemed  a  satisfaction  of  the  debt  (b).  The  ground  of  this 
doctrine  is,  that  a  testator  shall  be  presumed  to  be  just  before  he  is 
kind  or  generous.  And,  therefore,  although  a  legacy  is  generally  to 
be  taken  as  a  gift,  yet,  when  it  is  to  a  creditor,  it  ought  to  be  deemed 
to  be  an  act  of  justice,  and  not  of  bounty  in  the  absence  of  all  counter- 
vailing circumstances,  a-ocording  to  the  maxim  of  the  civil  law, 
"  Debitor  non  praesumitur  donare." 

§  1120.  Some  of  the  observations  which  have  been  already  made, 
apply,  although  with  diminished  force,  to  this  class  of  cases.  For, 
where  a  man  has  assets,  sufficient  both  for  justice  and  generosity,  and 
where  the  language  of  the  instrument  imports  a  donation,  and  not  a 
payment,  it  seems  difficult  to  say  why  the  ordinary  meaning  of  the 
words  should  not  prevail.  Where  the  sum  is  precisely  the  same  with 
the  debt,  it  may  be  admitted,  that  there  arises  some  presumption, 
and,  under  many  circumstances,  it  may  be  a  cogent  presumption  of 
an  intention  to  pay  the  debt.  But,  where  the  legacy  is  greater  than 
the  debtj  the  same  force  of  presumption  certainly  does  not  exist;  and, 
if  it  is  less  than  the  debt,  then  (as  we  shall  presently  see)  the 
presumption  is  admitted  to  be  gone. 

§  1121.  It  is  highly  probable  that  this  doctrine  was  derived  from 
the  civil  law,  where  it  is  clearly  laid  down,  but  with  limitations  and 
qualifications  in  some  respects  different  from  those  which  are 
recognized  in  equity  jurisprudence  (c).  Where  the  debt  was  absolutely 
due,  and  for  the  same  precise  sum,  a  legacy  to  the  same  amount  was 

(a)  Lindley,  L.J.,  In  re  Lacon,  Lacon  v.  Lacon,  [1891]  2  Ch.  482,  490;  In  re 
Boby,  Hewlett  v.  Newingion,  [1908]  1  Ch.  71.  Questions  of  another  nature  often 
arise,  as  to  what  constitutes  an  advancement  of  a  child,  within  the  meaning  of  that 
term  in  section  5  of  Statute  of  Distributions  (22  &  23  Chas.  II.  ch.  10).  The  principal 
cases  on  the  subject  will  be  found  collected  in  1  Mad.  Pr.  Ch.  507,  616.  See  Taylor 
V.  Taylor,  L.  E.  20  Eq.  155,  where  the  subject  of  advancement  was  elaborately  dis- 
cussed by  Sir  G.  Jessel,  M.E.,  who  held  that  an  "  advancement  by  portion  "  within 
the  meaning  of  the, statute  is  a  sum  given  by  a  parent  to  establish  a  child  in  life  or 
to  make  a  provision  for  a  child.  See  also  Edwards  v.  Freeman,  2  P.  Will  436;  Boyd 
v.  Boyd,  L.  R.  4  Eq.  305;  Leighton  v.  Leighton,  L.  E.  18  Bq.  458;  and  Hatfield  v. 
Minet,  8  Ch.  D.  136;  In  re  Blockley,  Blockley  v.  Blockley,  29  Ch.  D.  258. 

(b)  Talbott  V.  Duke  of  Shrewsbury,  Prec.  Ch.  394. 

(c)  Pothiei,  Pand.  Lib.  34,  tit.  3,  nn.  80  to  84. 


468  EQUITY   JURISPRUDENCE.  [CH.    XXIX. 

deemed  a  satisiaction  of  it.  But,  if  there  was  a  difference  even  in 
the  time  of  payment,  between  the  debt  and  the  legacy,  the  latter  was 
not  a  satisfaction.  "  Sin  autem,  neque  modo,  neque  tempore,  neque 
conditione,  neque  loco,  debitum,  differatur,  inutile  est  legatum  "  (d). 
And  so,  if  the  legacy  was  more  than  the  debt,  it  seems  that  it  was 
not  a  satisfaction.  "  Quotdens  debitor  creditori  sue  legaret,  ita  inutile 
esse  legatum,  si  nihil  interesset  creditoris  ex  testamento  potius  agere, 
quam  ex  pristina  obligatdone  "  [e). 

§  1122.  But,  although  the  rule,  as  to  a.  legacy  being  an  ademption 
of  a  debt,  is  now  well  established  in  equity,  yet  it  is  deemed  to  have 
so  little  of  a  solid  foundation,  either  in  general  reasoning,  or  as  a  just 
interpretation  of  the  intention  of  the  testator,  that  slight  circum- 
stances have  been  laid  hold  of  to  escape  from  it,  and  to  create 
exceptions  to  it  (/).  The  rule,  therefore,  is  not  allowed  to  prevail, 
where  the  legacy  is  of  less  amount  than  the  debt,  even  as  a  satisfaction 
pro  tanto ;  nor  where  there  is  a  difference  in  the  times  of  payment  of 
the  debt  and  of  the  legacy ;  nor  where  they  are  of  a  different  nature  as 
to  the  subject-matter  or  as  to  the  interest  therein;  nor  where  a 
particular  motive  is  assigned  for  the  gift;  nor  where  the  debt  is 
contracted  subsequently  to  the  will ;  nor  where  the  legacy  is  contingent 
or  uncertain ;  nor  where  there  is  an  express  direction  in  the  will  for 
the  payment  of  debts  {g) ;  nor  where  the  bequest  is  of  a  residue  (h) ; 
nor  where  the  debt  is  a  negotiable  security  (i) ;  nor  where  the  legacy  is 
given  to  the  creditor's  wife  (k) ;  nor  where  the  debt  is  upon  an  open 
and  running  accoxmt  (Z).  And  as  to  a  debt,  strictly  so  called,  there  is 
no  difference,  whether  it  is  a  debt  due  to  a  stranger  or  to  a  child  (m). 

§  1123.  On  the  other  hand,  where  a  creditor  leaves  a  legacy  to 
his  debtor,  and  either  takes  no  notice  of  the  debt,  or  leaves  his 
intention  doubtful,  courts  of  equity  will  not  deem  the  legacy  as  either 
necessarily  prima  facie  evidence  of  an  intention  to  release  or  extinguish 
the  debt;  but  they  will  require  some  evidence,  either  on  the  face  of  the 
will,  or  aliunde  to  establish  such  an  intention  (n). 

(d)  Dig.  Lib.  30  (Lib.  prim,  de  Leg.),  tit.  1,  f.  29;  Inst.  Lib.  2,  tit.  20,  §  14. 

(e)  Pothier,  Pand.  Lib.  34,  tit.  3,  n.  33. 

(/)  See  In  re  Horlock,  Calham  v.  Smith,  [1895]  1  Ch.  516. 

ig)  Talbott  v.  Duke  of  Shrewsbury,  Prec.  Ch.  894 ;  Ghauncey's  Case,  1  P.  Wms. 
408;  Rowe  v.  Rowe,  2  De  G.  &  Sm.  294;  In  re  Huish,  Bradshaw  v.  Huish,  48  Ch.  D. 
260;  In  re  Horlock,  Calham  v.  Smith,  [1895]  1  Ch.  516. 

(h)  Barrett  v.  Beckford,  1  Vea.  Sen.  519;  Devese  v.  Pontet,  1  Cox,  188;  s.c. 
Prec.  Ch.  by  Finch,  240,  note. 

(t)  Carr  v.  Eastabrooke,  8  Ves.  564. 

(k)  Hall  V.  Hill,  1  Dru.  &  War.  94. 

(I)  Rawlins  v.  Powell,  1  P.  Will.  299. 

(m)  Tolson  v.  Collins,  4  Ves.  483.  The  principal  cases  on  this  subject  will  be 
found  collected  in  2  Eoper  on  Legacies,  by  White,  ch.  17,  pp.  28  to  67;  2  Fonbl. 
Bq.  B.  4,  Pt.  1,  ch.  1,  §  5,  note  (1!);  Goodfellow  v.  Burchett,  2  Vern.  298,  Mr. 
Eaithby's  note;  Chancey's  Case,  1  P.  Will.  410,  Mr.  Cox's  note;  2  Mad.  Pr.  Ch.  33 
to  49. 

(n)  Courtenay  v.  Williams,  3  Hare,  589;  affirmed  15  L.  J.  Ch.  204. 


§    1122 — 1123ft.]  ELECTION    AND    SATISFACTION.  469 

§  1123a-.  Closely  allied  to  the  subject  of  election  and  satisfaction 
in  cases  of  legacies,  is  the  doctrine  as  to  what  is  called  the  cumulation 
of  legacies,  or  when  and  under  what  circumstances  legacies  given  by 
different  instruments  or  wills  are  to  be  deemed  cumulative  or  not. 
The  general  rule  here  is,  that  where  legacies  are  given  by  different 
instruments,  whether  will  and  codicil  or  successive  codicils,  the 
presumptdon  is,  prima  facie,  that  two  legacies  are  intended,  and  that 
the  last  is  not  a  mere  repetition  of  the  former ;  nor  will  the  fact  that 
each  legacy  is  for  the  same  amount  in  money  operate  to  repel  the 
presumption  that  they  are  cumulative,  there  must  be  other  circum- 
stances to  repel  it  (o).  As,  for  example,  if  the  testator  connects  a 
motive  with  both,  and  that  motive  is  the  same,  the  double  coincidence 
will  induce  the  courts  to  believe  that  repetition  and  not  accumu- 
lation is  intended.  A  fortiori,  where  each  instrument  gives  precisely 
the  same  thing,  as  a  horse,  or  a  coach,  or  a  particular  diamond  ring : 
or  the  language  shows  by  express  declaration  or  natural  implication, 
that  the  testator  intends  a  mere  repetition,  the  presumption  of 
accumulation  is  completely  repelled  (p). 

(o)  Hooley  v.  Hatton,  1  Bro.  C.  C.  390  n. ;  Russell  v.  Dickson,  i  H.  L.  C.  293; 
Wilson  V.  O'Leary,  L.  E.  7  Ch.  448;  Hubbard  v.  Alexander,  3  Ch.  D.  738. 

(p)  Hooley  v.  Hatton,  1  Bro.  C.  C.  390  n. ;  Heming  v.  Clutterbuck,  1  Bligh. 
N.  S.  479;  Suisse  v.  Lord  Lowther,  2  Hare,  424,  432;  affirmed  12  L.  J.  Ch.  315. 


470  EQUITY  JURISPRUDENCE.  [CH.    XXX. 


CHAPTER    XXX. 


APPLICATION    OF    PURCHASE-MONEY. 


§  1124.  In  this  chapter  the  learned  author  discussed  a  question 
formerly  of  great  importance,  how  far  a  receipt  of  the  trustee  exercising 
a  power  of  sale  operated  as  a  complete  discharge  or  whether  the 
purchaser  was  bound  to  look  to  the  due  Application  op  Purchase- 
money.  This  subject,  therefore,  although  it  may  equally  apply  to 
other  cases  of  trusts,  created  inter  vivos,  may  be  conveniently  treated 
in  this  place.  The  doctrine  was  hotly  assailed  by  many  eminent 
persons,  and  its  inconveniences  pointed  out,  the  most  glaring  arising 
in  cases  of  infancy,  where  the  parties  in  interest  are  incapable  of  giving 
a  valid  assent  to  the  receipt  and  application  of  the  purchase-money 
by  the  trustee  (a).  The  principle  was  intelligible  enough  and  also 
soimd  equity.  The  purchaser  acquired  the  land  with  notice  that  it  was 
burdened  with  a  charge,  for  there  was  no  personal  remedy  against 
him,  and  this  land  belonged  to  the  beneficiary  claiming  under  the 
will  or  settlement  burdened  only  with  the  charge  (b).  The  question 
that  had  to  be  determined  was  whether  there  existed  an  overriding 
power  of  disposition  displacing  the  title  of  the  beneficiary. 

§  1125.  Tlie  doctrine  was  not  universally  true,  that  a  purchaser, 
having  notice  of  a  trust,  was  bound  to  see  that  the  trust  was  in  all 
cases  properly  executed  by  the  trustee.  As  applied  to  the  cases  of 
sales,  authorized  to  be  made  by  trustees  for  particular  purposes  (which 
is  the  subject  of  our  present  enquiries),  the  doctrine  was  not  absolute, 
that  the  purchaser  was  bound  to  see  that  the  money  raised  by  the  sale 
was  applied  to  the  very  purposes  indicated  by  the  trust.  On  the 
contrary,  there  were  many  qualificatdone  and  limitations  of  the  doctrine 
in  its  actual  application  to  sales  both  of  personal  and  of  real  estate. 

§  1126.  The  best  method  of  ascertaining  the  true  nature  and 
extent  of  these  qualifioations  and  limitations  will  be  by  a  separate 
consideration  of  them,  as  applied  to  each  kind  of  estate,  since  the 
rules  which  govern  them  are,  in  some  respects,  dissimilar,  owing  to 
the  greater  power  which  a  testator  has  over  his  real,   than  he  has 

(a)  Mr.  Butler's  note  to  Co.  Litt.  290b,  note  (1),  §  12 ;  in  Balfour  v.  Welland, 
16  Ves.  156,  Sir  William  Grant  expressed  his  dissatisfaction  with  the  doctrine.  See 
also  Sugden,  Vendors  and  Purchasers,  9th  ed.,  vol.  2,  ch.  11,  pp.  30  to  56. 

(fc)  Davis  (or  Davies)  v.  Spurling,  1  Euss.  &  M.  64 ;  s.c.  Taml.  199. 


§    1124 — 1128.]  APPLICATION   OF  PURCHASE-MONEY.  471 

over  his  personal,  estate.  In  regard  to  real  estate,  it  is  well  known 
that,  at  the  common  law,  it  was  not  bound,  even  for  the  specialty 
debts  of  the  testator,  except  in  the  hands  of  his  heir  if  specially  bound ; 
although,  by  3  W.  &  M.  ch.  14,  it  was  made  liable  for  such  debts  in 
the  hands  of  his  devisee.  But,  as  to  simple  contract  debts,  until  1833, 
the  real  estate  of  deceased  persons  was  not  liable  generally  for  the 
payment  of  any  such  debts.  The  statute  of  3  &  4  William  IV.  o.  104, 
had  made  all  such  real  estate  liable,  as  assets  in  equity,  for  the 
payment  of  all  debts,  whether  due  on  simple  contract  or  by  specialty. 
But,  as  to  personal  estat«,  it  was  at  the  commion  law,  and  still 
remains,  directly  liable  to  the  payment  of  all  debts;  or  as  it  is 
commonly  expressed,  it  goes  to  the  executors,  as  assets  for  creditors, 
to  be  applied  in  a  due  course  of  administration.  It  is,  therefore,  in  a 
strict  sense,  a  trust  fund  for  the  payment  of  debts  generally  (c).  We 
shall  presently  see,  how  this  consideration  bears  upon  the  topic  now 
under  discussion. 

§  1127.  The  general  principle  of  courts  of  equity  in  regard  to  the 
duty  of  purchasers  (not  especially  exempted  by  any  provision  of  the 
author  of  the  trust),  in  cases  of  sales  of  property,  or  charges  on 
property  under  trusts  (for  there  is  no  difference,  in  point  of  law, 
between  sales  and  charges),  to  see  to  the  application  of  the  purchase- 
money,  was  this:  that,  wherever  the  trust  or  charge  was  of  a  defined 
and  limited  nature,  the  purchaser  must  himself  have  seen  that  the 
purchase-money  was  applied  to  the  proper  discharge  of  the  trust;  but, 
wherever  the  trust  was  of  a  general  and  unlimited  nature,  he  need 
not  have  seen  to  it.  Thus,  for  example,  if  a  trust  were  created  to 
sell  for  the  payment  of  a  portion,  or  of  a  mortgage,  there,  the 
purchaser  must  have  seen  to  the  application  of  the  purchase-money 
to  that  specified  object.  If,  on  the  other  hand,  a  trust  were  created, 
a  devise  made,  or  a  charge  established,  by  a  party  for  the  payment 
of  debts  generally,  the  purchaser  was  exempted  from  any  such 
obligation  (d). 

§  1128.  Let  us,  in  the  first  place,  consider  the  doctrine,  in  its 
application  to  personal  estate,  including  therein  leasehold  estates, 
which  are,  equally  with  personal  chattels,  subject  to  the  payment 
of  debts.  As  the  personal  estate  was  liable  for  the.  payment  of  the 
debts  of  the  testator  generally,  the  purchaser  of  the  whole,  or  any 
part  of  it,  never  was,  upon  the  principle  already  stated,  bound  to  see 
that  the  purchase-money  was  applied  by  the  executor  to  the  discharge 
of  the  debts  (e);  for  the  trust  was  general  and  unlimited,  it  being  for 
the  payment  of  all  debts.  It  is  true,  that  there  was  an  apparent 
exception  to  the  rule;  and  that  is,  that  he  must  have  been  a  bond 
fide   purchaser,   without  notice,    that ,  there   were   no   debts;    and   he 

(c)  Elliot  V.  Merriman,  Barnard,  ch.  78. 

(d)  Elliot  v.  Menyman,  Barnard,  ch.  78;  Braithwaite  v.  Britain,  1  Keen,  206. 

(e)  Elliot  V.  Merryman,  Barnard,  ch.  78. 


472  EQUITY  JURISPRUDENCE.  [CH.    XXX. 

must  not  have  colluded  with  the  executor  in  any  wilful  misapplication 
of  the  assets  (/).  But  this  proceeded  upon  the  ground  of  fraud,  which 
is  of  itself  sufficient  to  vacate  any  transaction  whatsoever. 

§  1129.  It  made  no  difference  in  the  application  of  this  general 
doctrine  as  to  the  personal  estate,  that  the  testator  had  directed  his 
real  estate  to  be  sold  for  the  payment  of  his  debts,  whether  he  specified 
the  debts  or  not ;  or  that  he  had  made  a  specific  bequest  of  a  part  of  his 
personal  estate  for  a  particular  purpose,  or  to  a  particular  person, 
although  such  specific  bequest  were  known  to  the  purchaser,  if  he  had 
no  reason  to  suspect  any  fraudulent  purpose  (g).  The  ground  of  this 
doctrine  was,  that,  otherwise,  it  would  have  been  indispensable  for  a 
person,  before  he  could  become  the  purchaser  of  any  personal  estate, 
specifically  bequeathed,  to  come  into  a  court  of  equity  to  have  an 
account  taken  of  the  assets  of  the  testator,  and  of  the  debts  due  from 
him,  and  in  order  to  ascertain  whether  it  was  necessary  for  the 
executor  to  sell;  which  would  be  a  most  serious  inconvenience,  and 
greatly  retard  the  due  settlement  of  estates  (k). 

§  1130.  In  the  next  place,  in  regard  to  real  estate.  Where  there 
was  a  devise  of  real  estate  for  the  payment  of  debts  generally,  or 
the  testator  charged  his  debts  generally  upon  his  real  estate,  and  the 
money  was  raised  by  the  trustee  by  sale  or  mortgage,  the  same  rule 
applied  as  in  cases  of  personalty,  that  the  purchaser  or  mortgagee 
was  not  bound  to  look  to  the  application  of  the  purchase-money; 
and  for  the  same  reason,  namely,  the  unlimited  and  general  nature  of 
the  trust,  and  the  difficulty  of  seeing  to  the  application  of  the  purchase 
or  mortgage  money,  without  an  account  of  all  the  debts  and  assets 
under  the  superintendence  of  courts  of  equity  (i). 

§  1131.  In  the  case  of  sales  of  real  estate  for  the  payment  of  debts 
generally,  the  purchaser  was  not  only  not  bound  to  look  to  the 
application  of  the  purchase-money ;  but,  if  more  of  the  estate  were 
sold  than  was  sufficient  for  the  purposes  of  the  trust,  it  would  not  be 
to  his  prejudice.  Nor  would  it  make  any  difierence,  in  cases  of  this 
sort,  whether  the  testator  charged  both  his  personal  and  real  estate 
with  payment  of  his  debts,  or  the  real  only;  for,  ordinarily  the 
personal  estate,  unless  specially  exempted,  is  the  primary  fund ;  and, 
if  exempted,  still  the  charge  on  the  real  estate  was  general  and 
unlimited.  Nor  would  it  make  any  difference,  whether  the  devise 
directed  the  sale  of  the  real  estate  for  the  payment  of  debts,  or  only 
charges  the  real  estate  therewith.  Nor  would  it  make  any  difference, 
that  the  trust  was  only  to  sell,  or  was  a  charge  for  so  much  as  the 
personal  estate  is  deficient  to  pay  the  debts.     Nor  would  it  make  any 

(/)  Hill  V.  Simpson,  7  Ves.  152;  Watkins  v.  Cheek,  2  Sim.  &  St.  199. 
ig)  Hill  V.  Simpson,  7  Ves.  152;  Co.  Litt.  290  b,  Butler's  note  (1),  §  12. 
(h)  Ewer  v.  Corbet,  2  P.  Will.  148;  Langley  v.  Earl  of  Oxford,  Ambler,  17. 
(»)  Elliot  V.  Merryman,  Barnard,  ch.  78;  Robinson  v.  Lowater,  5  De  G.  M.  &  G. 
272. 


§    1129 1135.]  APPLICATION    OF    PUHCHASE-MONEY.  473 

difference,  that  a  specific  part  of  the  real  estate  was  devised  for  a 
particular  p'urpose  or  trust,  if  the  whole  real  estate  were  charged  with 
the  payment  of  debts  generally  by  the  will  (fc).  If,  however,  the 
trustees  had  only  a  power  to  sell  and  not  an  estate  devised  to  them, 
then,  unless  the  personal  estate  were  deficient,  the  power  to  sell  did 
not  arise  (I). 

§  1132.  But  where  in  cases  of  real  estate,  the  trust  was  for  the 
payment  of  legacies,  or  of  specified  or  scheduled  debts,  the  rule  was 
different;  for  they  were  ascertained;  and  the  purchaser  must  have 
seen,  and,  in  the  view  of  the  court  of  equity,  he  was  bound  to  have 
seen,  that  the  money  was  actually  applied  in  discharge  of  them  (m). 
On  the  other  hand,  cases  occurred,  where  the  devise  was  for  the 
payment  of  debts  generally,  and  also  for  the  payment  of  legacies,  and 
then  the  trust  became  a  mixed  one.  In  such  a  case,  the  purchaser 
was  not  bound  to  see  to  the  application  of  the  purchase-money ; 
because  to  have  held  him  liable  to  see  the  legacies  paid,  would,  in  fact, 
have  involved  him  in  the  necessity  of  taking  an  account  of  all  the 
debts  and  assets  (n). 

§  1133.  Where  the  time  directed  by  the  devise  for  a  sale  of  the  real 
estate  had  arrived,  and  the  persons  entitled  to  the  money  were  infants, 
or  were  unborn;  there,  the  purchaser  was  not  bound  to  see  to  the 
application  of  the  purchase-money,  because  he  might  otherwise  have 
been  impKoated  by  a  trust  of  long  duration  (o).  But,  if  an  estate  were 
charged  with  a  sum  of  money,  payable  to  an  infant  at  his  majority ; 
there,  the  purchaser  was  bound  to  see  the  money  duly  paid  on  his 
arrival  at  age ;  for  the  estate  would  remain  chargeable  with  it  in  his 
hands  (p). 

§  1134.  Where  the  trusts  were  defined,  and  yet  the  money  was 
not  merely  to  be  paid  over  to  third  persons,  but  was  to  be  applied  by 
the  trustees  to  certain  purposes,  which  required,  on  their  part,  time, 
deliberation,  and  discretion,  it  seems  that  the  purchaser  was  not  bound 
to  see  to  the  due  application  of  the  purchase-money;  as,  where  it 
was  to  pay  all  debts  which  should  be  ascertained  within  eighteen 
months  after  the  sale ;  or  where  the  trustees  were  to  lay  out  the 
money  in  the  funds,  or  in  the  purchase  of  other  lands  upon  certain 
trusts  (g). 

§  1135.  These  are  some  of  the  most  important  and  nice  distinctions 
which  had  been  adopted  by  courts  of  equity  upon  this  intricate  topic ; 

(/c)  Co.  Litt.  290  b,  Butler's  note  (1),  §  12;  Shaw  v.  Borrer,  1  Keen,  559;  Ball 
V.  Harris,  i  M.  &  Cr.  164;  Corser  v.  Cartwright,  L.  E.  7  H.  L.  731. 

(I)  Shaw  V.  Borrer,  1  Keen,  559. 

(m)  Elliot  V.  Merryman,  Barnard,  eh.  78;  Eland  v.  Eland,  4  M.  &  Cr.  420;  John- 
son V.  Rennet,  3  Myl.  &  K.  624. 

(n)  Forbes  v.  Peacock,  1  Ph.  717;  Corser  v.  Cartwright,  L.  E.  7  H.  L.  731. 

(o)  Breedon  v.  Breedon,  1  Euss.  &  M.  413;  Gillibrand  v.  Goold,  5  Sim.  149. 

(p)  Dickinson  v.  Dickinson,  3  Bro.  C.  C.  19. 

(g)  Balfour  v.  Wetland,  16  Ves.  151;  Locke  v.  Lomas,  5  De  G.  &  Sm.  326. 


474  EQUITY   JURISPRUDENCE.  [CH.    XXX. 

and  they  lead  strongly  to  the  conclusion,  to  which  not  only  eminent 
jurists,  but  also  eminent  judges,  have  arrived,  that  it  would  have  been 
far  better  to  have  held  in  all  cases,  that  the  party,  having  the  right 
to  sell,  had  also  the  right  to  receive  the  purchase-money  without  any 
further  responsibility  on  the  part  of  the  purchaser,  as  to  its  application. 
§  1135a.  The  view  taken  in  the  text  that  the  purchaser  from  a 
trustee  ought  not  to  be  saddled  with  the  responsibility  of  seeing  that 
the  purchase-money  was  properly  applied,  was  adopted  by  the 
Legislature  in  1860  by  an  enactment  now  embodied  in  section  20  of 
the  Trustee  Act,  1893  (56  &  57  Vict.  c.  53),  which  provides  that  "  the 
receipt  in  writing  of  any  trustee  for  any  money  payable  to  him  under 
any  trust  or  power  shall  effectually  exonerate  the  person  paying  the 
same  from  seeing  to  the  application,  or  from  being  answerable  for  any 
loss  or  misapplication  thereof."  And  by  section  40  of  the  Settled  Land 
Act,  1882,  it  is  provided  that  the  receipt  in  writing  of  the  trustees  of 
a  settlement,  or  where  one  trustee  is  empowered  to  act  of  one  trustee 
or  of  the  personal  representative  or  representatives  of  the  last  surviving 
or  continuing  trustee  for  any  money  or  securities  paid  or  transferred  to 
the  trustees,  trustee,  representatives,  or  representative  as  the  case  may 
be,  effectually  discharges  the  payer  or  transferor  therefrom  and  from 
being  bound  to  the  application  or  being  answerable  for  any  loss  or 
misapplication  thereof,  and,  in  case  of  a  mortgagee  or  other  person 
advancing  money,  from  being  concerned  to  see  that  any  money 
advanced  by  him  is  wanted  for  any  purpose  of  the  Act  or  that  no 
more  than  is  wanted  is  raised. 


§  1135a— 1138.]  CHARITIES.  475 


CHAPTER   XXXI. 


CHARITIES. 

§  1136.  It  is  in  oases  of  wills  also  that  we  most  usually  find  provisions 
for  public  Charities  ;  and  to  the  consideration  of  this  subject, 
constituting,  as  it  does,  a  large  and  peculiar  source  of  equity  jurisdiction 
under  the  head  of  trusts,  we  shall  now  proceed. 

§  1137.  It  is  highly  probable  that  the  rudiments  of  the  law  of 
charities  were  derived  from  the  Roman  or  civil  law  (a).  One  of  the 
earliest  fruits,  of  the  Emperor  Constantine's  real  or  pretended  zeal 
for  Christianity  was  a  permission  to  his  subjects  to  bequeath  their 
property  to  the  Church  (6).  This  permission  was  soon  abused  to  so 
great  a  degree  as  to  induce  the  Emperor  Valentinian  to  enact  a 
mortmain  law,  by  which  it  was  restrained  (c).  But  this  restraint  was 
gradua,lly  relaxed;  and  in  the  time  of  Justinian  it  became  a  fixed 
maxim  of  Eoman  jurisprudence,  that  legacies  to  pious  uses  (which 
included  all  legacies  destined  for  works  of  piety  or  charity,  whether 
they  related  to  spiritual  or  to  temporal  concerns)  were  entitled  to 
peculiar  favour,  and  to  be  deemed  privileged  testaments  (d). 

§  1188.  Thus,  for  example,  a  legacy  of  ornaments  for  a  church,  a 
legacy  for  the  maintenance  of  a  clergyman  to  instruct  poor  children, 
and  a  legacy  for  their  sustenance,  were  esteemed  legacies  to  pious 
and  charitable  uses  (e).     In  all  these  cases  the  bequests  had  their 

(a)  In  Lord  Chief  Justice  Wilmot's  notes  of  his  opinions  (pp.  53,  54),  it_is  said  : 
"  Donations  for  public  purposes  were  sustained  in  the  civil  law,  and  applied  when 
illegal  cy-pres  to  other  purposes,  one  hundred  years  before  Christianity  was  the 
religion  of  the  Empire."  And  for  this  is  cited  Dig.  Lib.  33,  tit.  2,  De  Usu  et  Usufruc. 
Legatorum,  §§  16,  17. 

(b)  Cod.  Theodos.  Lib.  16,  tit.  2,  ,1.  4. 

(c)  Ibid.  1.  20.  To  those  who  may  not  be  familiar  with  the  term  "  mortmain," 
it  may  be  proper  to  state  that  the  statutes  in  England,  which  prohibit  corporations 
from  taking  lands  by  devise,  even  for  charities,  except  in  certain  special  cases,  are 
generally  called  the  Statutes  of  Mortmain,  mortuA  manu,  for  the  reason  of  which 
appellation  Sir  Edward  Coke  offers  many  conjectures.  But  (says  Mr.  Justice  Black- 
stone,  1  Black.  Comm.  479),  there  is  one  which  seems  more  probable  than  any  that 
he  has  given  us,  namely,  that  these  purchases  being  usually  made  by  ecclesiastical 
bodies,  the  members  of  which  (being  professed)  were  reckoned  dead  persons  in  law ; 
land,  therefore,  holden  by  them  might,  with  great'  propriety;  be  said  to  be  held  in 
mortud  manu.  The  word  is  now  commonly  employed  to  designate  all  prohibitory  laws 
which  limit,  restrain,  or  annul  gifts,  grants,  or  devises  of  lands  and  othfer  corporeal 
hereditaments  to  charitable  uses.     See,  on  this  subject,  2  Black.  Comm.  268  to  274. 

(d)  2  Domat,  Civil  Law,  B.  4,  tit.  2,  §  6. 

(e)  2  Domat,  B.  4,  tit.  2,  §  6. 


476  EQUITY  JURISPRUDENCE.  [CH.  XXXI. 

charitable  motives,  independent  of  the  consideration  of  the  merit  of 
the  particular  legatees.  But  other  legacies,  although  not  of  a  pious 
or  charitable  nature,  but  yet  for  objects  of  a  pubhc  nature,  or  for  a 
general  benefit,  were  also  deemed  entitled  to  the  like  encouragement 
and  protection.  Thus,  for  example,  a  legacy  destined  for  some  public 
ornament,  or  for  some  public-  use,  such  as  to  build  a  gate  for  a  city 
or  for  the  embellishment  and  improvement  of  a  public  street  or 
square,  or  as  a  prize  to  persons  excelling  in  an  art  or  science,  vi^as 
deemed  a  privileged  legacy,  and  of  complete  validity  (/).  "  Si  quid 
relictum  sit  civitatibus,  omne  valet,  sive  in  distributionem  relin- 
quatur,  sive  in  opus,  sive  in  alimenta,  vel  in  eruditionem  puerorum, 
sive  quid  aliud  "  (g).  Again:  "  Civitatibus  legari  potest  etiam,  quod 
ad  honorem  omatumque  civitatis  pertinet.  Ad  omatum ;  puta,  quod 
instruendum  forum,  theatrum,  stadium,  legatum  fuerit.  Ad  honorem ; 
puta,  quod  ad  munus  edendum,  venationemve,  ludos  scenicos,  ludos 
Circenses,  rehctum  fuerit;  aut,  quod  ad  divisionem  singulorum  civium 
vel  epulam,  relictum  fuerit.  Hoc  amplius,  quod  in  alimenta  infirmse 
aetatis  (puta  senioribus,  vel  pueris,  puellisque),  relictum  fuerit;  ad 
honorem  civitatis  pertinere  respondetur  "  (h). 

§  1139.  The  construction  of  testaments  of  this  nature  was  most 
liberal ;  and  the  legacies  were  never  permitted  to  be  lost,  either  by 
the  uncertainty  or  failure  of  the  persons  or  objects  for  which  they 
were  destined.  Hence,  if  a  legacy  was  given  to  the  church,  or  to  the 
poor  generally,  without  any  description  of  what  church,  or  what  poor, 
the  law  sustained  it,  by  giving  it  in  the  first  case  to  the  parish  church 
of  the  place  where  the  testator  hved;  and  in  th'e  latter  case  to  the 
hospital  of  tihe  same  place;  and  if  there  was  none,  then  to  the  poor 
of  the  same  parish  (i).  The  same  rule  was  applied  where,  instead  of  a 
bare  legacy,  the  testator  appointed  as  his  heir,  or  devisee,  or  legatee, 
the  church  of  the  poor.  It  was  construed  to  belong  to  the  church,  or 
the  poor  of  the  parish,  where  he  resided  (k).  So,  if  a  legacy  were  given 
to  God  (as  seems  sometimes  to  have  been  the  usage  in  the  time  of 
Justinian),  it  was  construed  to  be  a  legacy  to  the  church  of  the  parish 
where  the  testator  resided  (I). 

§  1140.  If  the  testator  himself  had  designated  the  person  by 
whom  the  charity  was  to  be  carried  into  effect,  he  was  compellable  to 
perform  it.  If  no  person  was  designated,  the  bishop  or  ordinary  of 
the  place  of  the  testator's  nativity  might  compel  its  due  execution  (m). 
And  in  all  cases  where  the  objects  were  indefinite,  the  legacy  was 
carried  into  effect  under  the  direction  of  the  judge  who  had  cognizance 

(/)  Ibid. 

(g)  Dig.  Lib.  30,  tit.  1,  f.  117. 

(h)  Ibid.  f.  122. 

(t)  2  Domat,  B.  4,  tit.  2,  §  6,  art.  1,  p.  169;  Perriere,  Diet.  h.  t. 

(fc)  Ibid.  art.  4,  p.  169. 

il)  Ibid. ;  Novelise,  141,  cap.  9. 

(m)  2  Domat,  B.  4,  tit.  2,  §  6,  art.  5,  169;  Cod.  Lib.  1,  tit.  3,  1.  28,  §  1. 


§  1139—1142.]  CHARITIES.  477 

of  the  subject  {n).  So,  if  a  legacy  was  given  for  a  definite  object,  which 
either  was  previously  accomplished,  or  which  failed,  it  was,  neverthe- 
less, held  valid,  and  applied  under  judicial  discretion  to  some  otlier 
object  (o).  Thus,  for  example,  if  the  testator  had  left  a  legacy  for 
building  a  parish  church,  or  an  apartment  in  a  hospital,  and  before 
his  death  the  church  or  apartment  had  been  built,  or  it  was  not 
necessary  or  useful,  the  legacy  did  not  become  a  nullity,  but  it  was 
applied  by  the  proper  functionary  to  some  other  purposes  of  piety  or 
charity  (p).  And  we  shall  presently  see,  that  the  like  doctrine  has  been 
carried  to  a  great  extent  in  the  jurisprudence  of  England  on  the  same 
subject. 

§  1141.  The  high  authority  of  the  Eoman  law,  coinciding  with  the 
religious  notions  of  the  times,  could  hardly  fail  to  introduce  these 
principles  of  pious  legacies  into  the  common  law  of  England ;  and 
the  zeal  and  learning  of  the  ecclesiastical  tribunals  must  have  been 
constantly  exercised  to  enlarge  their  operation.  Lord  Thurlow  (g)  was 
clearly  of  opinion,  that  the  doctrine  of  charities  grew  up  from  the 
ciyU  law;  and  Lord  Eldon  (r),  in  assenting  to  that  opinion,  has 
judiciously  remarked,  that  at  an  early  period  the  ordinary  had  the 
power  to  apply  a  portion  of  every  man's  personal  estate  to  charity, 
and  when,  afterwards,  the  statute  compelled  a  distribution,  it  is  not 
impossible  that  the  same  favour  should  have  been  extended  to  charity 
in  wills,  which,  by  their  own  force,  purported  to  authorize  such  a 
distribution.  Be  the  origin,  however,  what  it  may,  it  cannot  be 
denied  that  many  of  the  privileges  attached  to  pious  legacies  have 
been  for  ages  incorporated  into  the  English  law  (s).  Indeed,  in  former 
t'mes,  the  construction  of  charitable  bequests  was  pushed  to  the  most 
alarming  extravagance.  And  although  it  has  been  in  a  great  measure 
checked  in  later  and  more  enlightened  times,  there  are  still  some 
anomalies  in  the  law  on  this  subject  which  are  hardly  reconcilable 
with  any  sound  principles  of  judicial  interpretation,  or  with  any 
proper  exercise  of  judicial  authority. 

§  1142.  The  history  of  the  law  of  charities,  prior  to  the  statute  of 
the  43rd  of  Elizabeth,  ch.  4,  which  is  emphatically  called  the  Statute 
of  Charitable  Uses  (<),  is  extremely  obscure.  It  may,  nevertheless, 
be  useful  to  endeavour  to  trace  the  general  outline  of  that  history,  since 
it   may    materially    assist   us    in    ascertaining   how    far   the    present 

(n)  Ibid.  ;  Swinburne,  Pt.  1,  §  16,  p.  104. 

(o)  2  Domat,  B.  4,  tit.  2,  §  6,  art.  6,  p   170. 

(p)  Ibid. 

(g)  White  v.  White,  1  Bro.  C.  C.  12.  • 

(r)  Moggridge  v.  Thackwell,  7  "Ves.  36,  69;  Mills  v.  Farmer,  1  Meriv.  55,  94,  95. 

is)  Swinb.  on  Wills,  Pt.  1,  §  16,  pp.  66  to  73. 

(t)  This  statute  has  been  repealed  by  the  Mortmain  and  Charitable  Uses  Act, 
1888,  but  it  is  expressly  provided  by  section  13,  sub-s.  2  of  that  statute  that  only 
those  objeets  are  to  be  deemed  charitable  which  are  so  defined  in  the  statute  of 
Elizabeth. 


478  EQUITY  JURISPEUDBNCB.  [CH.  XXXI. 

authority  and  doctrines  of  the  Court  of  Chancery,  in  regard-  te 
charitable  uses,  depend  upon  that  statute;  and  how  far  they  arise 
from  its  general  jurisdiction,  as  a  court  of  equity,  to  enforce  trusts, 
and  especially  to  enforce  trusts  to  pious  uses. 

§  1143.  It  is  not  easy  to  arrive  at  any  satisfactory  conclusion  on 
this  head.  Until  a  comparatively  recent  period,  and,  indeed,  until 
the  report  of  the  Commissioners  on  the  Public  Eecords,  published 
by  Parliament  in  1827  (to  which  our  attention  will  be  more  directly 
drawn  hereafter),  few  traces  could  be  found  in  the  volumes  of  printed 
reports,  or  otherwise,  of  the  exercise  of  this  jurisdiction,  in  any 
shape,  prior  to  the  statute  of  Elizabeth.  The  principal,  if  not  the 
only  cases  then  to  be  found,  were  decided  in  the  courts  of  common 
law,  and  generally  turned  upon  the  question,  whether  the  uses  were 
void  or  not,  within  the  statutes  against  superstitious  uses.  One  of 
the  earliest  cases  is  Porter's  Case  (m);  which  was  a  devise  of  lands, 
devisable  by  custom,  to  the  testator's  wife,  in  fee,  upon  condition  that 
she  should  assure  the  lands,  devised  for  the  maintenance  and  con- 
tinuance of  a  free  school,  and  certain  almsmen  and  almswomen;  and 
it  appeared  that  the  heir  had  entered  for  a  condition  broken,  and 
conveyed  the  same  lands  to  the  queen.  It  was  held,  that  the 
use,  being  for  charity,  was  a  good  and  lawful  use,  and  not  void  by 
the  statutes  against  superstitious  uses;  and  that  the  queen  might 
well  hold  the  land  for  the  charitable  uses.  Lord  Loughborough,  in 
commenting  on  this  case,  observed:  "  It  does  not  appear,  that  this 
court  (that  is,  chancery),  at  that  period,  had  cognizance  upon  informa- 
tions for  the  establishment  of  charities.  Prior  to  the  time  of  Lord 
Ellesmere  {x),  as  far  as  the  tradition  of  the  times  immediately 
following  goes,  there  were  no .  such  informations  as  that  upon  which 

1  am  now  sitting  (that  is,  an  information  to  establish  a  charity); 
but  they  made  out  their  case,  as  well  as  they  could,  by  law  "  (y). 

§  1144.  So,  that  the  result  of  Lord  Loughborough's  researches  on 
this  point  was  that,  until  about  the  period  of  enacting  the  statute  of 
Elizabeth,  bills  were  not  filed  in  chancery  to  establish  charities  It 
is  remarkable,  that  Sir  Thomas  Egerton  and  Lord  Coke,  who  argued 
Porter's  Case  for  the  queen,  although  they  cited  many  antecedent 
cases,  refer  to  none  which  were  not  decided  at  law.  And  the  doctrine 
established  by  Porter's  Case  is,  that  if  a  feoffment  is  made  to  a  general 

(tt)  1  Co.  22  b,  in  34  &  35  Eliz.  See  also  a  like  decision  in  Partridge  v.  Walker, 
cited  4  Co.  116  b ;  Martiiale  v.  Martin,  Co.  Bliz.  288 ;  Thetford  School,  8  Co.  130. 

{x)  Sir  Thomas  Egerton  was  made  Lord  Chancellor  in  39  Eliz.  1696,  and  was 
created  Lord  Ellesmere  1  James  I.  1603. 

{y)  Att.-Gen.  v.  Bowyer,  3  Ves.  714,  726.     In  Eyre  v.  Countess  of  Shaftesbury, 

2  P.  Will.  119,  Sir  Joseph  Jekyll,  M.E.,  said  :  "  In  like  manner,  in  case  o£  charity, 
the  king  has,  pro  bono  ■publico,  an  original  right  to  superintend  the  case  thereof;  so 
that,  abstracted  from  the  statute  of  Elizabeth  relating  to  charitable  uses,  and  ante- 
cedent to  it  as  well  as  Since,  it  has  been  every  day's  practice  to  file  informations  in 
chancery-,  in  the  attorney-general's  name;  forthe  establishment  of  charities."  Post, 
§  1148;  Att.-Gen.  v.  Brereton,    Ves.  425,  427. 


§  1143—1147.]  CHARITIES.  479 

legal  use,  not  superstitious,  although  indefinite,  although  no  person  is 
in  esse,  who  could  be  the  cestui  que  use,  yet  the  feofifment  is  good; 
and  if  the  use  is  bad,  the  heir  of  the  feoffor  will  be  entitled  to  enter, 
the  legal  estate  remaining  in  him. 

§  1145.  The  absence,  therefore,  of  all  authority  derived  from  any 
known  antecedent  equity  decisions  upon  an  occasion  when  they 
would  probably  have  been  used,  if  any  existed,  did  certainly  seem 
very  much  to  favour  the  conclusion  of  Lord  Xioughborough.  And  in 
the  absence  of  any  such  known  antecedent  decisions,  it  was  not  a 
rash  conjecture,  for  it  would  be  but  a  conjecture,  that  Porter's  Case, 
having  established  that  charitable  uses,  not  superstitious,  were  good 
at  law,  the  Court  of  Chancery,  in  analogy  to  the  other  cases  of  trusts, 
immediately  afterwards  held  the  feoffees  to  such  uses  accountable  in 
equity  for  the  due  execution  of  them ;  and  that  the  inconveniences 
felt  in  resorting  to  this  new  and  anomalous  proceeding,  from  the 
indefinite  nature  of  some  of  the  uses,  gave  rise,  within  a  few  years, 
to  the  statute  of  43  Elizabeth,  ch.  4  {z). 

§  1146.  This  view  might  also  have  some  tendency  to  reconcile  the 
language  of  Lord  Loughborough  with  that  of  an  opposite  character, 
used  upon  other  occasions  by  other  chancellors  and  judges,  in 
reference  to  the  jurisdiction  of  chancery  over  charities  (a),  as  it 
would  show,  that  in  cases  of  feoffments  to  charitable  uses,  bills  to 
establish  those  uses  might  in  fact  have  been  introduced,  or  brought 
into  familiar  praetice,  by  Lord  Ellesmere,  about  five  years  before  the 
statute  of  Elizabeth.  This  would  be  quite  consistent  with  the  fact 
that  such  bills  were  not  sustained  where  the  donation  was  to  charity 
generally,  and  no  trust  estate  was  interposed,  and  no  legal  estate 
was  devised,  to  support  the  uses.  It  is  very  certain,  that,  at  law, 
devises  to  charitable  uses  generally,  without  interposing  a  trustee, 
and  devises  to  a  non-existing  corporation,  or  to  an  unincorporated 
society,  would  have  been,  and  in  fact  were,  held  utterly  void  for  want 
of  a  person  having  a  sufficient  capacity  to  take  as  devisee  (b).  The 
statute  of  Elizabeth,  in  favour  of  charitable  uses,  cured  this  defect  (c), 
and.  provided  (as  we  shall  hereafter  have  occasion  more  fully  to 
consider)  a  new  mode  of  enforcing  such  uses  by  a  commission  under 
the  direction  of  the  Court  of  Chancery. 

§  1147.  Shortly  after  this  statute,  it  becaime  a  matter  of  doubt, 
whether  the  Court  of  Chancery  could  grant  relief  by  original  bill  in  cases 
within  that  statute,  or  whether  the  remedy  was   not  confined  to  the 

(z)  There  was,  in  fact,  an  Act  passed,  respecting  charitable  uses,  in  39  Eliz. 
ch.  9;  but  it  was  repealed  by  the  Act  of  43  Eliz.  ch.  4.  Com.  Dig.  Charitable  Uses, 
N.'  14. 

(a)  See  ante,  §  1143,  note;  post,  §  1148. 

(b)  Anon.,  1  Ch.  Cas.  207;  Att.-Gen.  v.  Tancred,  1  W.  Bl.  90;  s.o.  Ambler,  351; 
Gollison's  Case,  Hob.  136;  s.c.  Moore,  888;  Widmore  v.  Woodruffe,  Ambler,  636, 
640;  Com.  Dig.  Devise,  K. 

(c)  Com.  Dig.  Charitable  Uses,  N.  11;  Com.  Dig.  Chancery,  2  N.  10. 


480  EQUITY  JURISPRUDENCE.  [CH.  XXXI. 

proceeding  by  commission  under  the  statute.  That  doubt  remained 
until  the  reign  of  Charles  II.,  when  it  was  settled  in  favour  of  the  juris- 
diction of  the  court  by  original  bill  (d).  On  one  occasion,  when  this  very 
question  was  argued  before  him,  Lord  Keeper  Bridgman  declared, 
"  That  the  king,  as  pater  patriae,  may  inform  for  any  public  benefit  for 
charitable  uses,  before  the  statute  of  30  [43]  of  Elizabeth  for  Charitable 
Uses.  But  it  was  doubted  the  court  could  not  by  bill  take  notice  of  that 
statute,  so  as  to  grant  a  relief  according  to  that  statute  upon  a  bill  "  (e). 
On  another  occasion  soon  afterwards,  where  the  devise  was  to  a  college, 
and  was  held  void  at  law  by  the  judges,  for  a  misnomer,  on  a  bill  to 
establish  the  devise  as  a  charity,  the  same  question  was  argued;  Lord 
Keeper  Pinch  (afterwards  Lord  Nottingham)  held  the  devise  good,  as  an 
appointment  under  the  statute  of  Elizabeth;  and  he  "decreed  the 
charity,  though  before  the  statute  no  such  decree  could  have  been 
made  "  (/).  It  would  seem,  therefore,  to  have  been  the  opinion  of  Lord 
Nottingham,  that  an  original  bill  would  not,  before  the  statute  of 
Elizabeth,  lie  to  establish  a  charity,  where  the  estate  did  not  pass  at 
law  to  which  the  charitable  uses  attached. 

§  1148.  On  the  other  hand,  the  language  of  other  judges  leads  to 
the  conclusion  that  antecedent  to  the  statute  of  Elizabeth,  the  Court 
of  Chancery  did,  in  virtue  of  its  inherent  authority,  exercise  a  large 
jurisdiction  in  cases  of  charities.  In  Eyrev.  Shaftesbury  (3),  Sir 
Joseph  Jekyll  said,  in  the  course  of  his  reasoning  on  another  point: 
"  In  like  manner,  in  the  case  of  charity,  the  king,  pro  bono  publico,  has 
an  original  right  to  superintend  the  care  thereof,  so  that,  abstracted 
from  the  statute  of  Elizabeth  relating  to  charitable  uses,  and  antecedent 
to  it  as  well  as  since,  it  has  been  every  day's  practice,  to  file  informa- 
tions in  chancery,  in  the  attorney-general's  name,  for  the  estabUshment 
of  charities."  In  the  Corporation  of  Burford  v.  Lenthall  (h),  Lord 
Hardwicke  is  reported  to  have  said  :  ' '  The  courts  have  mixed  the  juris- 
diction of  bringing  informations  in  the  name  of  the  attorney-general 
with  the  jurisdiction  given  them  under  the  statute  of  Elizabeth,  and 
proceed  either  way,  according  to  their  discretion." 

§  1149.  In  a  subsequent  case  (i),  which  was  an  information  filed  by 
the  attorney-general  against  the  master  and  governors  of  a  school, 
calling  them  t-o  account  in  chancery,  as  having  the  general  superinten- 
dency  of  all  charitable  donations,  the  same  learned  chancellor,  in   dis- 

(d)  Att.-Gen.  v.  Newman,  1  Ch.  Cas.  157;  s.c.  1  Lev.  284;  Eyre  v.  Countess  of 
Shaftesbury,  2  P.  Will.  119;  Att.-Gen.  v.  Brereton,  2  Ves.  425,  427;  West  v.  Knight, 
1  Ch.  Cas.  134;  Anon.,  1  Ch.  Cas.  267;  2  Fonhl.  Eq.  B.  3,  pi.  2,  ch.  1,  §  1;  Parish 
of  St.  Dunstan  v.  Beauchamp,  1  Ch.  Cas.  193. 

(e)  Att.-Gen.  v.  Newman,  1  Ch.  Cas.  157. 
(/)  Anon.,  1  Ch.  Cas.  267. 

((7)  2  P.  Will.  103,  118.     Cited  also  7  Ves.  Jun.  63,  87 ;    and  by  Lord   Justice 
Wilmot,  in  Wilmot's  Notes  of  Cases,  24. 
(h)  2  Atk.  660  (1743). 
(i)  Att.-Gen.  v.  Middleton,  [1751]  2  Ves.  Sen.  327. 


§    1148—1151.]  CHAEITIES.  481 

cussing  the  general  jurisdiction  of  the  Court  of  Chancery  on  this  head, 
and  distinguishing  the  case  before  him  from  others,  because  the  trustees 
or  governors  were  invested  with  the  visitatorial  powers,  said :  "  Consider 
the  nature  of  the  foundation.  It  is  at  the  petition  of  two  private 
persons,  by  charter  of  the  Crown,  which  distinguishes  this  ease  from 
cases  of  the  statute  of  Elizabeth  on  Charitable  Uses,  or  cases  before 
that  statute  in  which  this  court  exercised  jurisdiction  of  charities  at 
large.  Since  that  statute,  where  there  is  a  charity  for  the  peculiar 
purposes  therein,  and  no  charter  given  by  the  Crown  to  found  and 
regulate  it,  unless  a  particular  exception  out  of  the  statute,  it  must  be 
regulated  by  commission.  But  there  may  be  a  bill  by  information 
in  this  court,  founded  on  its  general  jurisdiction;  and  that  is  from 
necessity;  because  there  is  no  charter  to  regulate  it,  and  the  king  has 
a  general  jurisdiction  of  this  kind.  There  must  be  somewhere  a  power 
to  regulate.  But  where  there  is  a  charter,  with  proper  powers, 
there  is  no  ground  to  come  into  this  court  to  establish  that  charity; 
and  it  must  be  left  to  be  regulated  in  the  manner  the  charter  has  put 
it,  or  by  the  original  rules  of  law.  Therefore,  though  I  have  often 
heard  it  said  in  this  court,  if  an  information  is  brought  to  establish 
a  charity,  and  praying  a  particular  relief  and  mode  of  regulation,  and 
the  party  fails  in  that  particular  relief;  yet  that  information  is  not 
to  be  dismissed,  but  there  must  be  a  decree  for  the  establishment  (k). 
That  is  always  with  this  distinction,  where  it  is  a  charity  at  large ;  or 
in  its  nature,  before  the  statute  of  charitable  uses ;  but  not  in  the  case 
of  charities  incorporated  and  established  by  the  king's  charter,  under 
the  great  seal,  which  are  established  by  proper  authority  allowed." 
And  again :  "  It  is  true  that  an  information  in  the  name  of  the 
attorney-general,  as  an  officer  of  the  Crown,  was  not  a  head  of  the 
statute  of  Charitable  Uses,  because  that  original  jurisdiction  was 
exercised  in  this  court  before.  But  that  was  always  in  cases  now 
provided  for  by  that  statute;  that  is,  charities  at  large,  not  properly 
and  regularly  provided  for  in  charters  of  the  Crown." 

§  1150.  It  was  manifestly,  therefore,  the  opinion  of  Lord 
Hardwicke,  that,  independently  of  the  statute  of  Elizabeth,  the  Court 
of  Chancery  did  exercise  original  jurisdiction  in  cases  of  charities  at 
large,  which  he  explains  to  mean  charities  not  regulated  by  charter. 
But  it  does  not  appear  that  his  attention  was  called  to  discriminate 
between  such  as  could  take  eSect  at  law,  by  reason  of  the  inter- 
position of  a  feofiee  or  devisee,  capable  of  taking,  and  those  where  the 
purpose  was  general  charity,  without  the  interposition  of  any  trust  to 
carry  it  into  effect.  The  same  remark  applies  to  the  dictum  by  Sir 
Joseph  Jekyll. 

§  1151.  In  a  still  later  case  (l),  which  was  an  information  to 
establish   a  charity,    and  aid   a   conveyance  in   remainder  to   certain 

(k)  S.p.  Att.-Gen.  v.  Brereton,  2  Ves.  Sen.  425,  427 ;  post,  §  1163. 
(Z)  Att.-Gen.  v.  Tancred,  1  W.  Bl.  90;  s.c.  Ambler,  351;  1  Eden,  10. 
E.J.  31 


482  EQUITY  JURISPRUDENCE.  [CH.  XXXI. 

officers  of  Christ's  College  to  certain  charitable  uses,  Lord  Keeper 
Henley  (afterwards  Lord  Northington)  is  reported  to  have  said :  ' '  The 
conveyance  is  admitted  to  be  defective,  the  use  being  limited  to  certain 
officers  of  the  corporation,  and  not  to  the  corporate  body ;  eind,  there- 
fore, there  is  a  want  of  proper  persons  to  take  in  perpetual  succession. 
The  only  doubt  is,  whether  the  court  shall  supply  this  defect  for  the 
benefit  of  the  charity,  under  the  statute  of  Elizabeth.  And  I  take 
the  uniform  rule  of  this  court,  before,  at,  and  after  the  statute  of 
Elizabeth,  to  have  been,  that,  where  the  uses  are  charitable,  and  the 
person  has  in  himself  full  power  to  convey,  the  court  will  aid  a 
defective  conveyance  to  such  uses.  Thus,  though  devises  to  corpora- 
tions were  void  under  the  statute  of  Henry  VIII.,  yet  they  were 
always  considered  as  good  in  equity,  if  given  to  charitable  uses." 
And  he  then  proceeded  to  declare,  that  he  was  obUged,  by  the 
uniform  course  of  precedents,  to  assist  the  conveyance;  and,  therefore, 
he  established  the  conveyance  expressly  under  the  statute  of  Elizabeth. 

§  1152.  There  is  some  reason  to  question,  whether  the  language 
here  imputed  to  Lord  Northington  is  minutely  accurate.  His  lordship 
manifestly  aided  the  conveyance,  as  a  charity,  in  virtue  of  the  statute 
of  Elizabeth.  And  there  is  no  doubt,  that  it  has  been  the  constant 
practice  of  the  court,  since  that  statute,  to  aid  defects  in  conveyances 
to  charitable  uses.  But  it  is  by  no  means  clear  that  such  defects  were 
aided,  before  that  statute.  The  old  cases,  although  arising  before 
the  statute,  were  deemed  to  be  within  the  reach  of  that  statute  by 
its  retrospective  language ;  and  were  expressly  decided  on  that 
ground  (m).  The  very  case  put  of  devises  to  corporations,  which  are 
void  under  the  statute  of  Henry  VIII.,  and  are  held  good  solely  by 
the  statute  of  Elizabeth,  shows  that  his  lordship  was  looking  to  that 
statute;  for  it  is  plain,  that  a  devise,  void  by  statute,  cannot  be  made 
good  upon  any  principles  of  general  law.  What,  therefore,  is  supposed 
to  have  been  stated  by  him,  as  being  the  practice  before  the  statute, 
is  probably,  if  not  founded  in  the  mistake  of  the  reporter,  an 
inadvertent  statement  of  the  learned  chancellor.  The  same  case  is 
reported  in  another  book,  where  the  language  reported  to  have  been 
used  by  him  is:  "  The  constant  rule  of  the  court  has  always  been, 
where  a  person  has  a  power  to  give,  and  makes  a  defective  conveyance 
to  charitable  uses,  to  supply  it  as  an  appointment;  as  in  Jesus  College, 
Collison's  Case  in  Hobart,  136 "  {n).  Now,  OoUison's  Case  was 
expressly  held  to  be  sustainable,  only  as  an  appointment  under  the 
statute  of  Elizabeth ;  and  this  shows  that  the  language  of  his  lordship 
was  probably  meaat  to  be  limited  to  cases  governed  by  that  statute. 

§    1153.    In   a   more  recent  charity   case.    Sir   Arthur   Piggott  in 

(to)  Collison's  Case,  Hob.  136;  s.c.  Moore,  888;  id.  822;  Sir  Thomas  Middleton's 
Case,  Moore,  889;  Rivett's  Case,  Moore,  890,  and  the  cases  cited  in  Eaithby's  note 
to  Att.-Gen.  v.  Ryre,  2  Vem.  453;  Duke  on  Charit.  74,  77,  83,  84;  Bridg.  on  Charit. 
366,  370,  379,  380;  Duke  on  Charit.  105  to  113.  (n)  Ambler,  351. 


§  1152— 1154a.]  CHARITIES.  483 

argument  said :  ' '  The  diSerence  between  the  case  of  individuals  and 
that  of  charities  is  founded  on  a  principle  which  has  been  estabUshed 
ever  since  the  statute  of  Charitable  Uses,  in  the  reign  of  Elizabeth, 
and  has  been  constantly  acted  upon  from  those  days  to  the  present." 
Lord  Eldon  adopted  the  remark,  and  said:  "  I  am  fully  satisfied  as  to 
all  the  principles  laid  down  in  the  course  of  this  argument,  and  to 
accede  to  them.  all. ' '  His  lordship  then  proceeded  to  discuss  the  most 
material  of  the  principles  and  cases  from  the  time  of  Elizabeth,  and 
built  his  reasoning,  as  indeed  he  had  built  it  before,  upon  the  sup- 
position, that  the  doctrine  in  chancery,  as  now  established,  rested 
mainly  on  that  statute  (o). 

§  1154.  Such  were  the  principal  cases,  or  at  least  the  principal 
cases  which  my  own  researches  had  brought  to  my  notice  at  the  time 
when  the  present  work  was  first  published,  wherein  the  jurisdiction  of 
chancery  over  charities,  antecedent  to  the  statute  of  Elizabeth,  had 
been  directly  or  incidentally  discussed.  The  circumstance  that  no 
cases,  prior  to  that  time,  could  then  be  found  in  equity  jurisprudence ; 
the  tradition  that  had  passed  down  to  our  own  times,  that  original 
bills  to  establish  charities  were  first  entertained  in  the  time  of  Lord 
Ellesmere ;  the  fact,  that  the  cases  immediately  succeeding  that 
statute,  in  which  devises,  void  at  law,  were  held  good  in  equity  as 
charities,  might  have  been  argued  and  sustained  upon  the  general 
jurisdiction  of  the  court,  if  it  then  existed ;  and  yet  were  exclusively 
argued  and  decreed  upon  the  footing  of  that  statute ;  these  facts  and 
circumstances  did  certainly  seem  to  afford  a  strong  presumption  that 
the  jurisdiction  of  the  court  to  enforce  charities,  where  no  trust  is 
interposed,  and  where  no  devisee  is  in  esse,  and  where  the  charity  is 
general  and  indefinite,  both  as  to  persons  and  objects,  mainly  rests 
upon  the  constructions  (whether  ill  or  well  founded,  is  now  of  no 
consequence)  of  the  statute  of  Elizabeth. 

§  1154a.  This  subject  has  undergone  a  more  full  and  elaborate 
consideration.  Lord  Eldon,  in  a  case  calling  for  an  expression  of  his 
opinion  upon  the  point  in  1826,  took  occasion  to  observe:  "  It  may 
not  be  quite  clear  that  these  instruments,  originally  void,  were  held 
to  be  valid  merely  by  the  efiect  of  the  43rd  of  Elizabeth.  It  might 
have  been  supposed  that  there  was  in  the  court  a  jurisdiction  to  render 
effective  an  imperfect  conveyance  for  charitable  purposes;  and  the 
statute  has,  perhaps,  been  construed  with  reference  to  such,  the 
supposed  jurisdiction  of  this  court;  so  that  it  was  not  by  the  effect  of 
the  43rd  Elizabeth  alone,  but  by  the  operation  of  that  statute  on  a 
supposed  antecedent  jurisdiction  in  the  court,  that  void  devises  to 
charitable  purposes  were  sustained.  Out  of  that  supposed  jurisdiction 
this  construction  of  the  statute  may  have  arisen  "  (p).     In  1834,  in 

(o)  Mills  V.  Farmer,  1  Meriv.  55,  86,  94,  100;  Moggridge  v.  Thackwell,  7  Ves. 
36;  Att.-Gen.  v.  Bowyer,  3  Ves.  7U,  726. 

(p)  Att.-Gen.  v.  Skinners'  Co.,  2  Euss.  407,.  420. 


484  EQUITY  JURISPRUDENCE.  [CH.   XXXI. 

the  case  of  the  Brentwood  Grammar  School,  a  charity  founded  in  the 
reign  of  Philip  and  Mary,  came  under  the  consideration  of  Sir  John 
Leach,  the  Master  of  the  EoUs,  and  it  then  appeared  that  the  charity 
was  mainly  to  found  and  endow  a  grammar  school  at  Brentwood,  and 
was  established  by  a  decree  of  the  Court  of  Chancery  as  early  as  the 
12th  of  Elizabeth,  although  it  included  also  a  provision  for  the  support 
of  "  five  poor  folks  in  Southweald  " ;  and  Sir  John  Leach,  upon  the 
bill  before  him  for  the  establishment  of  a  proper  scheme  for  the 
charities,  affirmed  the  original  decree  (q).  Lord  Eedesdale,  in  a  very 
important  case  before  the  House  of  Lords,  in  1827,  expressed  himself 
to  the  following  effect:  "  We  are  referred  to  the  statute  of  Elizabeth, 
with  respect  to  charitable  uses,  as  creating  a  new  law  upon  the  subject 
of  charitable  uses.  That  statute  only  created  a  new  jurisdiction,  it 
created  no  new  law;  it  created  a  new  and  ancillary  jurisdiction,  a 
jurisdiction  borrowed  from  the  elements  which  I  have  mentioned ;  a 
jurisdiction  created  by  a  commission  to  be  issued  out  of  the  Court  of 
Chancery  to  enquire  whether  the  funds  given  for  charitable  purposes, 
had  or  had  not  been  misapplied,  and  to  see  to  their  proper  application ; 
but  the  proceedings  of  that  commission  were  made  subject  to  appeal 
to  the  Lord  Chancellor,  and  he  might  reverse  or  affirm  what  they 
had  done,  or  make  such  order  as  he  might  think  fit  for  reversing 
the  controlling  jurisdiction  of  the  Court  of  Chancery,  as  it  existed 
before  the  passing  of  that  st^atute;  and  there  can  be  no  doubt 
that,  by  information  by  the  attorney-general,  the  same  thing  might 
be  done.  .  .  .  While  proceedings  under  that  statute  were  in  common 
practice  (as  appears  in  that  collection  which  is  called  Duke's  Charitable 
Uses)  you  will  find  it  stated  that  in  certain  cases,  although  a  com- 
mission might  issue  under  the  statute,  an  information  by  the  attorney- 
general  was  the  better  remedy.  In  process  of  time,  indeed,  it  was 
found  that  the  commission  of  charitable  uses  was  not  the  best  remedy, 
and  that  it  was  better  to  resort  again  to  the  proceedings  by  way  of 
information  in  the  name  of  the  attorney-general.  The  right  which 
the  attorney-general  has  to  file  an  information  is  a  right  of  prerogative  ; 
the  king,  as  purens  patrise,  has  a  right,  by  his  proper  officer,  to  call 
upon  the  several  courts  of  justice,  according  to  the  nature  of  their 
several  jurisdictions,  to  see  that  right  is  done  to  his  subjects  who  are 
incompetent  to  act  for  themselves,  as  in  the  case  of  charities  and  other 
cases;  the  case  of  lunatics,  where  he  has  also  a  special  prerogative  tO' 
take  care  of  the  property  of  a  lunatic,  and  where  he  niay  grant  the 
custody  to  a  person  who,  as  a  committee,  may  proceed  on  behalf  of  the 
lunatic,  or  where  there  is  no  such  grant  the  attorney-general  may 
proceed  by  his  information  "  (r). 

(q)  Att.-Gen.  v.  Brentwood  School,  1  Myl.  &  Z.  376. 

(t)  Att.-Gen.  v.  Corporation  of  Dublin,  1  Bligh.  N.  S.  312,  347,  348.     See  also 
Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh  N.  S.  61,  62,  68. 


§  1154b— 1156.]  CHARITIES.  485 

§  1154b.  On  a  still  more  recent  occasion  in  Ireland,  Lord 
Chancellor  Sugden  examined  the  whole  subject  with  great  diligence  and 
learning,  and  reviewed  historically  the  leading  authorities.  The  con- 
clusion at  which  he  arrived  was,  that  there  is  an  inherent  jurisdiction 
in  equity  in  cases  of  charity,  and  that  charity  is  one  of  those  objects 
for  which  a  court  of  equity  has  at  all  times  interfered  to  make  good 
that  which  at  law  was  an  illegal  or  informal  gift;  and  that  cases  of 
charity  in  courts  of  equity  in  England  were  valid  independently  of  and 
previous  to  the  statute  of  Elizabeth  (s).  But  the  most  authentic  and 
at  the  same  time  the  most  satisfactory  information  upon  the  whole 
subject  is  to  be  found  in  the  report  of  the  Commissioners  upon  the 
Public  Records  published  by  Parliament  in  1827.  From  this  most 
important  document  it  appears,  by  a  great  number  of  cases  previous  to 
the  statute,  that  cases  of  charities  where  there  were  trustees  appointed 
for  general  and  indefinite  charities,  as  well  as  for  specific  charities,  were 
familiarly  known  to,  and  acted  upon  and  enforced  in,  the  Court  of 
Chancery.  In  some  of  these  cases  the  charities  were  not  only  of  aji 
uncertain  and  indefinite  nature,  but,  as  far  as  can  be  gathered  from 
the  records,  they  were  also  cases  where  there  were  either  no  trustees 
appointed,  or  the  trustees  were  not  competent  to  take  (t). 

§  1155.  But  however  extensive  the  jurisdiction  may  originally  have 
been  over  the  subject  of  charities,  and  however  large  its  application, 
it  is  very  certain  that,  since  the  statute  of  Elizabeth,  no  bequests  were 
deemed  within  the  authority  of  chancery,  and  capable  of  being  estab- 
lished and  regulated  thereby,  except  bequests  for  those  purposes  which 
that  statute  enumerates  as  charitable  or  which,  by  analogy,  were  deemed 
within  its  spirit  and  intendment  (m),  and  this,  as  already  noted,  has  been 
confirmed  by  the  Mortmain  and  Charitable  Uses  Act,  1888,  s.  13,  sub-s. 
2.  A  bequest  may,  in  an  enlarged  sense,  be  charitable,  and  yet  not 
within  the  purview  of  the  statute.  Charity,  as  Sir  William  Grant  (the 
Master  of  the  Rolls)  has  justly  observed,  in  its  widest  sense,  denotes 
all  the  good  affections  men  ought  to  bear  towards  each  other;  in  its 
more  restricted  and  common  sense,  relief  to  the  poor.  In  neither  of 
these  senses  is  it  employed  in  the  Court  of  Chancery  (x).  In  that  court 
it  means  such  charitable  bequests  only  as  are  within  the  letter  and  the 
spirit  of  the  statute  of  Elizabeth. 

§  1156.  Therefore,  where  a  testatrix  bequeathed  the  residue  of  her 
personal  estate  to  the  Bishop  of  D.,  to  dispose  of  the  same  "  to  such 

objects  of  benevolence  and  liberality  as  the  bishop  in  his  own  discretion 

(s)  The  Incorporated  Society  v.  Richards,  1  Conn.  &  Law.  58;  «.c.  1  Dm.  & 
Warr.  258. 

(t)  1  Cooper's  Public  Eecords,  324,  Calendar  of  Proceedings  in  Chancery. 

(a)  See  2  Boper  on  Legacies,  by  White,  ch.  19,  §  1,  pp.  Ill,  112;  Nash  v.  Morley, 
5  Beav.  177,  182,  183. 

(x)  Morice  v.  Bishop  of  Durham,  9  Ves.  399 ;  s.c.  10  Ves.  522 ;  Brown  v.  Yeall, 
7  Ves.  50,  note  (o) ;  Moggridge  v.  Thackwell,  7  Ves.  36;  Nightingale  v.  Goulbum, 
5  Hare,  485 ;  affirmed  2  Phil.  594. 


486  EQUITY    JUEISPEUDENCE.  [CH.    XXXI. 

shall  most  approve  of,"  and  she  appointed  the  bishop  her  executor; 
on  a  bill  brought  to  establish  the  will,  and  declare  the  residuary  bequest 
void,  the  bequest  was  held  void,  upon  the  ground,  that  objects  of 
"  benevolence  and  liberality  "  were  not  necessarily  charitable  within 
the  statute  of  Elizabeth,  and  were,  therefore,  too  indefinite  to  be 
executed.  On  that  occasion,  it  was  said  by  the  court,  that  no  case  had 
yet  been  decided,  in  which  the  court  had  executed  a  charitable  purpose, 
unless  the  will  had  contained  a  description  of  that  which  the  law 
acknowledged  to  be  a  charitable  purpose,  or  had  devoted  the  property  to 
purposes  of  charity  in  general,  in  the  sense  in  which  that  word  is  used 
in  the  Court  of  Chancery.  The  devise  here  was  of  a  trust  of  so  indefinite 
a  nature,  that  it  could  not  be  under  the  control  of  the  court ;  so  that  the 
administration  of  it  could  be  reviewed  by  the  court,  or  so  that,  if  the 
trustee  died,  the  court  itself  could  execute  the  trust.  It  fell,  therefore, 
within  the  rule  of  the  court,  that,  where  a  trust  is  inefiectually  declared, 
or  fails,  or  becomes  incapable  of  taking  effect,  the  party  taking  it  shall 
be  deemed  a  trustee,  if  not  for  those  who  were  to  take  by  the  will,  for 
those  who  are  to  take  under  the  disposition  of  the  law.  And  the  residue 
was  accordingly  decreed  to  the  next  of  kin  {y). 

§  1156a.  Upon  the  like  ground,  a  bequest  of  personalty  to  trustees 
to  be  applied  "for  the  relief  of  domestic  distress,  assisting  indigent  but 
deserving  individuals,  or  encouraging  undertakings  of  general  utility," 
has  been  held  void  for  vagueness  and  uncertainty,  and  as  not  being 
within  the  scope  of  the  statute  of  Elizabeth  (z). 

§  1157.  Upon  the  like  principles,  a  bequest  in  these  words,  "In 
case  there  is  any  money  remaining,  I  should  wish  it  to  be  given  in  pri- 
vate charity,"  has  been  held  inoperative;  for  the  objects  are  too  general 
and  indefinite,  not  being  within  the  statute  of  Elizabeth,  and  not  being 
so  ascertained,  that  the  trust  could  be  controlled  or  executed  by  a  court 
of  equity  (a).  So,  a  bequest  to  trustees,  "  to  such  charitable  or  public 
purpose  or  purposes,  person  or  persons,  as  the  trustees  should,  in  their 
discretion,  think  fit, ' '  has  been  held  void  :  for  it  is  in  effect  a  gift  in  trust, 
to  be  absolutely  disposed  of  in  any  manner  that  the  trustees  might  think 
fit,  consistent  with  the  laws  of  the  land ;  which  is  too  general  and  un- 
defined to  be  executed  {b).  So,  a  bequest  "  for  such  benevolent, 
religious,  and  charitable  purposes,  as  the  trustees  should,  in  their  dis- 
cretion, think  most  beneficial,"  has  been  held  void,  upon  the  ground  of 
its  generality,  as  it  did  not  limit  the  gift  to  cases  of  charity,  but  extended 
it  to  those  of  benevolence  also  (c).  So,  a  bequest  to  executors,  of  a 
fund,  "  to  apply  it  to  and  for  such  charitable  and  other  purposes  as 
they  shall  think  fit,  without  being  accountable  to  any  person  for  their 

iy)  Monce  v.  Bishop  of  Durham,  9  Ves.  399 ;  s.c.  10  Ves.  522. 

(2)  Kendall  v.  Granger,  5  Beav.  300. 

(0)  Ommaney  v.  Butcher,  1  Turn.  &  Buss.  260,  270. 

(b)  Vezey  v.  Januon,  1  Sim.  &  Stu.  69. 

(c)  Williams  v.  Kershaw,  cited  1  Keen,  232. 


§   1156a— 1161.]  CHARITIES.  487 

disposition  thereof,"  has  been  held  void  on  account  of  its  indefinite- 
ness  (d). 

§  1158.  So,  that  it  appears  from  these  eases,  that,  since  the  statute 
of  Elizabeth,  the  Court  of  Chancery  will  not  estabUsh  any  trusts  for 
indefinite  purposes  of  a  benevolent  nature,  not  charit^able  within  the 
purview  of  that  statute,  although  there  is  an  existing  trustee,  in  whom 
it  is  vested ;  but  it  will  declare  the  trust  void,  and  distribute  the  pro- 
perty among  the  next  of  kin.  And  yet,  if  there  were  an  original  juris- 
diction in  chancery  over  all  bequests,  charitable  in  their  own  nature, 
and  not  superstitious,  to  establish  and  regulate  them  independent  of 
the  statute,  it  is  not  easy  to  perceive  why  an  original  bill  might  not  be 
sustained  in  that  court  to  establish  such  a  bequest,  especially,  where 
a  trustee  is  interposed  to  effectuate  it;  for  the  statute  does  not  contain 
any  prohibition  of  such  a  bequest. 

§  1159.  A  discussion  of  the  procedure  by  commission  established 
by  the  statute  of  Elizabeth,  which  was  seldom  resorted  to,  as  noticed 
before,  has  now  become  unnecessary  by  reason  of  subsequent  legislation 
although  the  learned  author  might  not  have  been  justified  in  ignoring 
it,  notwithstanding  it  was  more  cumbrous  and  inefficient  even  than  the 
chancery  procedure  of  his  day.  The  administration  of  trusts  at  the 
present  day  is  supervised  by  the  Charity  Commissioners  established  by 
16  &  17  Vict.  c.  137,  s.  17  (e). 

§  1160.  The  uses  enumerated  in  the  preamble  of  the  statute,  as 
charitable,  are  gifts  for  the  relief  of  aged,  impotent,  and  poor  people ; 
for  maintenance  of  sick  and  maimed  soldiers  and  mariners ;  for  schools 
of  learning,  free  schools,  and  scholars  in  universities;  for  repairs  of 
bridges,  ports,  havens,  causeways,  churches,  sea-banks,  and  highways ; 
for  education  and  preferment  of  orphans ;  for,  or  towards  the  relief, 
stock,  or  maintenance  for  houses  of  correction;  for  marriages  of  poor 
maids ;  for  supportation,  aid,  and  help  of  young  tradesmen,  handicrafts- 
men, and  persons  decayed ;  for  relief  or  redemption  of  prisoners  or  cap- 
tives ;  and  for  aid  or  ease  of  any  poor  inhabitants,  concerning  payments 
of  fifteenths,  setting  out  of  soldiers,  and  other  taxes.  These  are  all  the 
classes  of  uses  which  the  statute  in  terms  reaches. 

§  1161.  From  this  summary  statement  of  the  contents  of  the 
statute,  it  is  apparent  that  the  authority  conferred  on  the  Court  of 
Chaaicery,  in  relation  to  charitable  uses,  is  very  extensive;  and  it  is  not 
at  all  wonderful,  considering  the  religious  notions  of  the  times,  that  the 
statute  should  have  received  the  most  liberal,  not  to  say,  in  some 
instances,  the  most  extravagant,  interpretation.  It  is  very  easy  to  per- 
ceive how  it  came  to  pass,  that,  as  power  was  give!n  to  the  court  in  the 
most  unlimited  terms,  to  annul,  diminish,  alter,  or  enlarge  the  orders 

(d)  Ellis  V.  Sielby,  1  Myl.  &  Cr.  286. 

(e)  See  Rendall  v.  Blair,  45  Ch.  D.  139;  In  re  Clergy  Orphan  Corporation,  [1894] 
3  Ch.  145 ;  In  re  Gilchrist  Charity,  [1895]  1  Ch.  367. 


488  EQUITY  JURISPRUDENCE.  [CH.  XXXI. 

and  decrees  of  the  commissioners,  and  to  sustain  an  original  bill  in 
favour  of  any  party  aggrieved  by  such  order  or  decree,  the  court  arrived 
at  the  conclusion  that  it  might,  by  original  bill,  do  that  in  the  first 
instance  which  it  certainly  could  do  circuitously  upon  the  commis- 
sion (/).  And  as  in  some  cases,  vchere  the  trust  was  for  a  definite 
object,  and  the  trustee  living,  the  court  might,  upon  its  ordinary  juris- 
diction over  trusts,  compel  an  execution  of  it  by  an  original  bill,  inde- 
pendently of  the  statute  (g),  we  are  at  once  let  into  the  origin  of  the 
practice  of  mixing  up  the  jurisdiction  by  original  bill  with  the  juris- 
diction under  the  statute,  which  Lord  Hardwicke  alluded  to  in  the 
passage  already  quoted  (h),  and  which  at  that  time  was  inveterately 
established.  This  mixture  of  the  jurisdiction  serves  also  to  illustrate 
the  remark  of  Lord  Nottingham,  in  the  case  already  cited  (i) ;  where, 
upon  an  original  bill,  he  decreed  a  devise  to  charity,  void  at  law,  to 
be  good  in  equity,  as  aji  appointment;  although  before  the  statute  of 
Elizabeth  no  such  decree  could  have  been  made. 

§  1162.  Upon  the  whole,  it  seems  now  to  be  the  better  opinion, 
that  the  jurisdiction  of  the  Court  of  Chancery  over  charities,  where 
no  trust  is  interposed,  or  where  there  is  no  person,  in  esse,  capable  of 
taking,  or  where  the  charity  is  of  an  indefinite  nature,  is  to  be  referred 
to  the  general  jurisdiction  of  that  court,  anterior  to  the  statute  of 
Elizabeth.  This  opinion  is  supported  by  the  preponderating  weight  of 
the  authorities,  speaking  to  the  point,  and  particularly  by  those  of  a 
very  recent  date,  which  appear  to  have  been  most  thoroughly  con- 
sidered. The  language,  too,  of  the  statute,  lends  a  confirmation  to 
this  opinion,  and  enables  us  to  trace  what  would  otherwise  seem  a 
strange  anomaly,  to  a  legitimate  origin. 

§  1163.  Be  this  as  it  may,  it  is  very  certain  that  the  Court  of 
Chancery  will  now  relieve  by  original  bill  or  information  upon  gifts 
and  bequests,  within  the  statute  of  Elizabeth;  and  informations  by 
the  attorney-general,  to  settle,  establish,  or  direct  such  charitable 
donations,  are  common  in  practice.  Indeed,  the  mode  of  proceeding 
by  commission  under  the  statute  of  Elizabeth,  has  been  long  abandoned, 
and  the  mode  of  proceeding  by  information  by  the  attorney-general, 
is  now  become  absolutely  universal,  so  as  to  amount  to  a  virtual 
extinguishment  of  the  former  remedy  (fe).  But,  where  the  gift  is  not 
a  charity  within  the  statute,  no  information  lies  in  the  name  of  the 
attorney-general  to  enforce  it  (t).     And  if  an  information  is  brought  in 

(/)  See  the  Poor  of  St.  Dunstan  v.  Beauchamp,  1  Ch.  Gas.  193,  2  Co.  Inst.  711; 
Corporation  of  Burford  v.  Lenthull,  2  Atk.  551. 

(g)  Att.-Gen.  v.  Dixie,  13  Ves.  519;  Ex  parte  Kirkby  Ravensworth  Hospital,  15 
Ves,  305;  Green  v.  Rutherforth,  1  Ves.  462;  Att.-Gen.  v.  Earl  of  Clarendon,  17  Ves. 
491,  499. 

{h)  Corporation  of  Burford  v.  Lenthall,  2  Atk.  520;  ante,  §  1148. 

(j)  Anon.,  1  Ch.  Cas.  267. 

(k)  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh  N.  S.  61,  62,  68. 

(!)  Att.-Gen.  v.  Hewer,  2  Vera.  387. 


§  1162—1164.]  CHARITIES.  489 

the  name  of  the  attorney-general,  and  it  appears  to  be  such  a  charity 
as  the  court  ought  to  support,  although  the  information  is  mistaken 
in  the  title  or  in  the  prayer  of  relief,  yet  the  bill  will  not  be  dismissed ; 
but  the  court  will  support  it  and  establish  the  charity  in  such  a  manner 
as  by  law  it  may  (m).  However,  the  jurisdiction  of  chancery  over 
charities  does  not  exist  where  there  are  local  visitors  appointed :  for  it 
then  belongs  to  them  and  their  heirs  to  visit  and  control  the  charity  (n). 
§  1164.  As  to  what  charities  are  within  the  purview  of  the  statute, 
it  may  be  proper 'to  say  a  few  words  in  this  place  in  addition  to  what 
has  been  already  suggested  (o),  although  it  is  impracticable  to  go  into 
a  thorough  review  of  the  oases  (p).  It  is  clear,  that  no  superstitious 
uses  are  within  the  purview  of  it.  When  the  learned  author  wrote,  the 
Court  of  Chancery  regarded  all  gifts  in  furtherance  of  the  Eoman 
Catholic  faith  (g)  and  the  Jewish  faith  (r)  as  falling  within  the  purview 
of  the  preamble  to  the  statute  1  Ed.  VI.  c.  14.  But  the  doctrines  of 
Protestant  Dissenters  do  not  seem  to  have  fallen  under  a  similar  ban  (s). 
It  has  recently  been  held  in  the  House  of  Lords  (t),  that  the  statute 
has  been  repealed  by  subsequent  legislation,  and  that  a  legacy  may  be 
given  for  masses  for  the  dead,  which  was  one  of  the  illustrations  given 
by  the  author.  The  topic  suggests  a  contrast,  namely,  a  gift  that  may 
be  applied  in  furthering  discussions  impugning  the  Christian  faith.  This 
is  not  necessarily  obnoxious  as  tending  to  promote  blasphemy  (u).  But 
there  are  certain  uses  which,  though  not  within  the  strict  letter,  are  yet 
deemed  charitable  within  the  equity  of  the  statute.  Such  is  money 
given  to  maintain  a  preaching  minister ;  to  maintain  a  schoolmaster  in  a 
parish ;  for  the  setting-up  of  a  hospital  for  the  relief  of  poor  people ;  for 
the  building  of  a  sessions  house  for  a  city  or  county ;  for  the  making 
of  a  new,  or  for  the  repairing  of  an  old  pulpit  in  a  church ;  for  the  buy- 
ing of  a  pulpit-cushion  or  pulpit-cloth;  or  for  the  setting  of  new  bells, 
where  there  are  none,  or  for  mending  of  them,  where  they  are  out  of 
order  (x). 

(m)  Att.-Gen.  v.  Smart,  1  Ves.  Sen.  72;  Att.-Gen.  v.  Jeames,  1  Atk.  365;  Att.- 
Gen.  V.  Breton,  2  Ves.  Sen.  425;  Att.-Gen.  v.  Middleton,  2  Ves.  Sen.  327;  Att.-Gen. 
V.  Parker,  1  Ves.  Sen.  43;  s.c.  2  Atk.  576;  Att.-Gen.  v.  Whitley,  11  Ves.  241,  247; 
ante,  §  1149. 

(n)  Att.-Gen.  v.  Price,  3  Atk.  108;  Att.-Gen.  v.  Governors  of  Harrow  School, 
2  Ves.  Sen.  552.  (o)  Ante,  §  §  1155  to  1158. 

(p)  They  are  enumerated  with  great  particularity  in  Duke  on  Charitable  Uses,  by 
Bridgman ;  in  Com.  Dig.  Charitable  Uses;  2  Eoper  on  Legacies,  by  White,  ch.  19, 
§§  1  to  5,  pp.  109  to  164. 

(g)  West  V.  Shuttleworth,  3  Myl.  &  K.  684. 

(r)  Da  Costa  v.  De  Pas,  2  Swanst.  487. 

(«)  Att.-Gen.  v.  Hickman,  1  Eq.  Cas.  Abr.  193;  Att.-Gen.  v.  Pearson,  3  Mer. 
409.     See,  however,  Shore  v.  Wilson,  9  CI.  &  P.  355. 

(t)  Bourne  v.  Keane,  [1919]  A.  C. 

(u)  Bowman  v.  Secular  Society,  Lim.  [1917]  A.  C.  406. 

ix)  Duke  on  Charit.  105,  113;  Bridgman  on  Duke  on  Charit.  354;  Com.  Dig. 
Charitable  Uses,  N.  1.  So  a  bequest  to  keep  in  repair  a  tombstone  or  an  ornamental 
window,  though  in  memory  of  a  particular  person,  is  good.  Hoare  v.  Osborne,  L.  E. 
1  Bq.  585. 


490  EQUITY    JDRISPEUDENCB.  [CH.    XXXI. 

§  1165.  Charities  are  also  so  highly  favoured  in  the  law,  that  they 
have  always  received  a  more  liberal  construction  than  the  law  will  allow 
m  gifts  to  individuals  (y).  In  the  first  place,  the  same  words  in  a  will, 
when  applied  to  individuals,  may  require  a  very  different  construction, 
when  they  are  applied  to  the  case  of  a  charity.  If  a  testator  gives  his 
property  to  such  person  as  he  shall  hereafter  name  to  be  his  executor, 
and  afterwards  he  appoints  no  executor;  or  if,  having  appointed  an 
executor,  the  latter  dies  in  the  lifetime  of  the  testator,  and  no  other 
person  is  appointed  in  his  stead;  in  either  of  these  cases,  as  these  be- 
quests are  to  individuals,  the  testator  will  be  held  intestate ;  and  his 
next  of  kin  will  take  the  estate.  But  if  a  like  bequest  be  given  to  the 
executor  in  favour  of  a  charity,  the  court  will,  in  both  instances,  supply 
the  place  of  an  executor,  and  carry  into  effect  that  very  bequest,  which, 
in  the  case  of  individuals,  must  have  failed  altogether  (a). 

§  1166.  Again,  in  the  case  of  an  individual,  if  an  estate  is  devised 
to  such  person  as  the  executor  shall  name,  and  no  executor  is  appointed ; 
or,  if  one  being  appointed,  he  dies  in  the  testator's  lifetime,  and  no  other 
is  appointed  in  his  place ;  or  the  appointment  becomes  nugatory ;  the 
bequest  becomes  a  mere  nullity.  Yet  such  a  bequest,  if  expressed  to  be 
for  a  charity,  would-be  good  (a).  So,  if  a  legacy  is  given  to  trustees  to 
distribute  in  charity,  and  they  all  die  in  the  testator's  lifetime ;  although 
the  legacy  becomes  thus  lapsed  at  law  (and  if  the  trustees  had  taken 
to  their  own  use,  it  would  have  been  gone  for  ever),  yet  it  will  be 
enforced  in  equity  (b). 

§  1167.  Again ;  although  in  carrying  into  execution  a  bequest  to  an 
individual,  the  mode,  in  which  the  legacy  is  to  take  effect,  is  deemed  to 
be  the  substance  of  the  legacy;  yet,  where  the  legacy  is  to  a  charity, 
the  court  will  consider  charity  as  the  substance ;  and  in  such  cases, 
and  in  such  cases  only,  if  the  mode  pointed  out  fail,  it  will  provide 
another  mode,  by  which  the  charity  may  take  effect,  but  by  which  no 
other  charitable  legatees  can  take  (c).  A  still  stronger  case  is,  that, 
if  the  testator  had  expressed  (d)  an  absolute  intention  to  give  a  legacy 
to  charitable  purposes,  but  he  has  left  uncertain,  or  to  some  future 
act,  the  mode  by  which  it  is  to  be  carried  into  effect ;  there,  the  court 
if  no  mode  is  pointed  out,  will  of  itself  supply  the  defect,  and  enforce 
the  charity  (e).  Therefore,  it  has  been  held,  that,  if  a  man  devises  a 
sum  of  money  to  charitable  uses  as  he  shall  direct  by  a  codicil  annexed 
to  his  will,  or  by  a  note  in  writing,  and  he  afterwards  leaves  no  direction 

(y)  2  Eoper  on  Legacies,  by  White,  ch.  19,  §  5,  pp.  16i  to  222. 
(2)  Moggridge  v.  Thackwell,  7  Ves.  36 ;  Mills  v.  Farmer,  1  Mer.  55. 
(o)  Moggridge  v.  Thackwell,  7  Ves.  36;  In  re  Hampton,  Public  Trustee  v.  Hamp- 
ton, 88  L/.  J.  Oh.  103. 

(b)  Moggridge  v.  Thackwell,  3  Bro.  C.  C.  517;  1  Ves.  Jun.  464;  7  Ves.  36; 
Mills  V.  Farmer,  1  Mer.  55. 

(c)  Ironmongers'  Co.  v.  Att.-Gen.,  10  CI.  &  F.  904. 

(d)  Corporation  of  Gloucester  v.  Osborn,  1  H.  L.  C.  272;  af&rming  3  Hare,  131. 

(e)  Moggridge  v.  Thackwell,  7  Ves.  36. 


§    1165—1170.]  CHARITIES.  491 

by  note  or  codicil,  the  court  will  dispose  of  it,  to  such  charitable  purposes 
as  it  thinks  fit.  So,  if  a  testator  bequeaths  a  sum  for  such  a  school  as 
he  shall  appoint,  and  he  appoints  none,  the  court  may  apply  it  for  what 
school  it  pleases  (/). 

§  1168.  The  doctrine  was  pressed  yet  farther ;  and  it  was  established, 
that,  if  the  bequest  indicate  a  charitable  intention,  but  the  object  to 
which  it  is  to  be  applied  is  against  the. policy  of  the  laV,  the  court  will 
lay  hold  of  the  charitable  intention,  and  execute  it  for  the  purpose  of 
some  other  charity,  agreeably  to  the  law,  in  the  room  of  that  contrary 
to  it  (g).  Thus,  before  the  removal  of  religious  disabilities,  a  sum  of 
money  bequeathed  to  found  a  Jews'  synagogue  has  been  enforced  by  the 
court  as  a  charity,  and  judicially  transferred  to  the  benefit  of  a  found- 
ling hospital  (h).  And  a  bequest  for  the  education  of  poor  children  in 
the  Roman  Catholic  faith,  has  been  decreed  in  chancery  to  be  disposed 
of  by  the  king  at  his  pleasure  under  his  sign-manual  (i). 

§  1169.  Another  principle,  equally  well  established,  is,  that,  if  the 
bequest  be  for  charity,  it  matters  not  how  uncertain  the  persons  or 
the  objects  may  be ;  or  whether  the  persons,  who  are  to  take,  are  in 
esse,  or  not;  or  whether  the  legatee  be  a  corporation  capable  in  law  of 
taking  or  not;  or  whether  the  bequest  can  be  carried  into  exact  execu- 
tion or  not;  for,  in  all  these  and  the  like  cases,  the  court  will  sustain 
the  legacy,  and  give  it  effect  according  to  its  own  principles  (fe).  And 
where  a  literal  execution  becomes  inexpedient  or  impracticable,  the  court 
will  execute  it,  as  nearly  as  it  can,  according  to  the  original  purpose, 
or  (as  the  technical  expression  is)  oy-pres  (I).  This  doctrine  seems  to 
have  been  borrowed  from  the  Roman  law ;  for  by  that  law,  donations 
for  public  purposes  were  sustained  and  were  applied,  when  illegal, 
oy-pres,  to  other  purposes,  at  least  one  hundred  years  before  Christianity 
became  the  religion  of  the  empire  (m). 

§  1170.  Thus,  a  devise  of  lands  to  the  churchwardens  of  a  parish 
(who  are  not  a  corporation  capable  of  holding  lands),  for  a  charitable 
purpose,  although  void  at  law,  will  be  sustained  in  equity  (n).  So,  if 
a  corporation,  for  whose  use  a  charity  is  designed,  is  not  in  esse  and 
cannot  come  into  existence  but  by  some  future  act  of  the  Crown,  as, 
for  instance,  a  gift  to  found  a  new  college,  which  requires  an  act  of 
incorporation,  the  gift  will  be  held  valid,  and  the  court  will  execute 
it  (o).     So,  if  a  devise  be  to  an  existing  corporation  by    a  misnomer, 

(/)  Att.-Gen.  v.  Syderfin.,  1  Vern.  224;  s.c.  2  Freem.  261;  Moggridge  v.  Thack- 
well,  7  Ves.  36;  In  re  Davis,  Harmen  v.  Hillyer,  [1902]  1  Ch.  876. 

(g)  Da  Costa  v.  De  Paz,  2  Swanst.  487  n. ;  s.c.  Cary  v.  Abbott,  7  Ves.  490. 

(h)  Da  Costa  v.  De  Paz,  2  Swanst.  487  n. ;  s.c.  1  Vern.  251. 

(i)  Cary  v.  Abbott,  7  Ves.  490;  De  Themmines  v.  De  Bonneval,  5  Euss.  292. 

(k)  Post,  §  1181.  (l)  Ironmongers'  Co.  v.  Att.-Gen.,  10  01.  &  F.  908. 

(m)  Per  Lord  Justice  Wilraot,  Wilmot's  Notes,  pp.  53,  54,  citing  Dig.  Lib.  33, 
tit.  2,  §§  16,  17,  De  Usu  et  Usufruct.  Legatorum. 

(n)  1  Burn,  Ecc.  Law,  226;  Duke,  33,  115;  Com.  Dig.  Chancery,  2  N.  2. 

(o)  Att.-Gen.  v.  Bowyer,  3  Ves.  714. 


492  EQUITY    JURISPRUDENCE.  [CH.    XXXI. 

which  might  make  it  void  at  law,  it  will  be  held  good  in  equity  (p).  So, 
where  a  devise  was  to  the  poor  generally,  the  court  decreed  it  to  be 
executed  in  favour  of  three  public  charities  in  London  (g).  So,  a  legacy 
towards  establishing  a  bishop  in  America,  was  held  good  although  none 
was  yet  appointed  (r).  So,  where  a  bequest  of  £1,000  was  "  to  the  Jews' 
Poor,  Mile  End,"  and  there  were  two  charitable  institutions  for  Jews 
at  Mile  End,  it  not  appearing  which  of  the  charities  was  meant,  the 
court  held,  that  the  fund  ought  to  be  applied,  cy-prea,  and  divided  the 
bequest  between  the  two  institutions  («). 

§  1170a.  And  where  a  oharity  is  so  given  that  there  can  be  no 
objects,  the  court  will  order  a  new  scheme  to  execute  it.  But  in  all 
cases  regard  must  be  had  to  the  intention  of  the  founder  as  originally 
expressed,  and  due  provisions  made  for  the  performance  of  his 
wishes  (t).  And  if  objects  may,  though  they  do  not  at  present,  exist, 
the  court  will  keep  the  fund  for  the  contemplated  scheme  (m).  And 
when  the  specified  objects  cease  to  exist,  the  court  wiU  remodel  the 
charity  (x).  Thus,  where  there  was  a  bequest  of  the  residue  of  the 
testator's  estate  to  a  company,  to  apply  the  interest  of  a  moiety 
"  unto  the  redemption  of  British  slaves  in  Turkey  or  Barbary,"  one- 
fourth  to  charity  schools  in  London  and  its  suburbs,  and  one- fourth 
towards  necessitated  freemen  of  the  company ;  there  being  no  British 
slaves  in  Turkey  or  Barbary  to  redeem,  the  court  directed  a  master 
to  approve  of  a  new  scheme  cy-pres ;  and  in  that  case,  it  further 
approved  a  scheme  under  which,  after  reserving  a  fund  to  redeem 
British  slaves  in  Turkey  or  Barbary,  other  charities  named  by  the 
testator  were  augmented  (y).  But  on  the  matter  finally  coming 
before  the  court,  the  scheme  was  so  far  modified  that  one  only  of  the 
charities,  and  that  in  a  modified  form,  shared  in  the  surplus  (z). 
Where  the  charitable  gift  is  of  a  legacy,  and  there  is  a  residuary  gift, 
upon  failure  of  the  charitable  object  in  the  lifetime  of  the  testator  there 
is  a  lapse,  and  consequently  no  place  for  the  application  of  the  fund 
cy-pres  (a). 

(p)  Anon.,  1  Ch.  Cas.  267;  Att.-Gen.  v.  Piatt,  Eep.  temp.  Finch,  221;  In  re 
Maquire,  L.  E.  9  Bq.  632;  In  re  Faraker,  Faraker  v.  Durell,  [1912]  2  Ch.  488. 

(q)  Att.-Gen.  v.  Peacock,  Eep.  temp.  Finch,  245;  Owens  v.  Bean,  ibid.  395; 
Att.-Gen.  v.  Syderfin,  1  Vern.  224;  B.C.  7  Ves.  48  n. ;  Clifford  v.  Francis,  1  Freem, 
330. 

ir)  Att.-Gen.  v.  Bishop  of  Chester,  1  Bro.  C.  G.  444. 

(s)  Bennett  v.  Hayter,  2  Beav.  81. 

(t)  Ironmongers'  Co.  v.  Att.-Gen.,  10  CI.  &  F.  908;  In  re  Lambeth  Charities, 
22  L.  J.  Ch.  959;  In  re  Church  Estate  Charity,  Wandsworth,  L.  E.  6  Ch.  296. 

(u)  Att.-Gen.  v.  Oglander,  3  Bro.  C.  C.  166.  For  a  case  where  the  court  after  a 
new  scheme  had  been  reformed  refused  to  change  it  for  one  identical  with  the  original 
purpose  of  the  charity,  see  Att.-Gen.  v.  Stewart,  L.  E.  14  Eq.  17. 

(x)  Att.-Gen.  v.  City  of  London,  3  Bro.  C.  C.  171 ;  s.c.  1  Ves.  Jun.  243. 

(y)  Att.-Gen.  v.  Ironmongers'  Co.,  2  M.  &  K.  676. 

(2)  Ironmongers'  Co.  v.  Att.-Gen.,  10  CI.  &  F.  908. 

(a)  In  re  Rymer,  Rymer  v.  Stanfield,  [1895]  1  Ch.  19. 


§  1170a— 1172.]  CHARITIES.  493 

§  1171.  In  further  aid  of  charities,  the  court  will  supply  all 
defects  of  conveyances,  where  the  donor  hath  a  capacity,  and  a 
disposable  estate,  and  his  mode  of  donation  does  not  contravene 
the  provisions  of  any  statute  (6).  The  doctrine  is  laid  down  with  great 
accuracy  by  Duke,  who  says  that  a  disposition  of  lands,  &c.,  to 
charitable  uses  is  good,  "  albeit  there  be  defect  in  the  deed,  or  in 
the  will,  by  which  they  were  first  created  and  raised;  either  in  the 
party  trusted  with  the  use,  where  he  is  misnamed,  or  the  like;  or 
in  the  party  or  parties  for  whose  use,  or  that  are  to  have  the  benefit 
of  the  use ;  or  where  they  are  not  well  named,  or  the  like ;  or  in  the 
execution  of  the  estate,  as  where  livery  of  seisin  or  attornment  is 
wanting,  or  the  like.  And,  therefore,  if  a  copyholder  doth  dispose 
of  copyhold  land  to  a  charitable  use  without  a  surrender;  or  a  tenant 
in  tail  convey  land  to  a  charitable  use  without  a  fine ;  or  a  reversion 
without  attornment  or  insolvency;  and  in  divers  such  like  cases,  &c., 
this  statute  shall  supply  all  the  defects  of  assurance ;  for  these  are 
good  appointments  within  the  statute  "  (o).  But  a  parol  devise  to 
charity  out  of  lands  being  defective  as  a  will,  which  is  a  manner  of 
conveyance,  which  the  testator  intended  to  pass  it  by,  can  have  no 
effect,  as  an  appointment  which  he  did  not  intend  {d).  Yet  it  has, 
nevertheless,  been  held,  where  a  married  woman,  administratrix  of 
her  husband,  and  entitled  to  certain  personal  estates  belonging  to 
him  (namely,  a  chose  in.  action),  afterwards  intermarried,  and  then, 
during  coverture,  made  a  will,  disposing  of  that  estate,  partly  to  his 
heirs,  and  partly  to  charity,  that  the  bequest,  although  void  at  law, 
was  good  as  an  appointment  under  the  statute  of  Elizabeth,  for  this 
reason ;  ' '  that  the  goods  in  the  hands  of  administrators  are  all  for 
charitable  uses ;  and  the  ofiice  of  the  ordinary,  and  of  the  administrator, 
is,  to  employ  them  to  pious  uses;  and  the  kindred  and  children  have 
no  property  nor  pre-eminence  but  under  the  title  of  charity  "  (e). 

§  1172.  With  the  same  view,  the  Court  of  Chancery  was,  in 
former  times,  most  astute  to  find  out  grounds  to  sustain  charitable 
bequests.  Thus,  an  appointment  to  charitable  uses  under  a  will, 
that  was  precedent  to  the  statute  of  Elizabeth,  and  so  was  utterly 
void,  was  held  to  be  made  good  by  the  statute  (/).  So,  a  devise, 
which   was   not   within   the   statute,    was   nevertheless   decreed   as   a 


(b)  Case  of  Christ's  College,  1  W.  Bl.  90;  Att.-aen.  v.  Rye,  2  Vem.  453,  and 
Baithby's  notes;  Mills  v.  Fanner,  1  Meriv.  55;  Att.-Gen.  v.  Bowyer,  3  "Ves.  Jun. 
714;  Incorporated  Society  v.  Richards,  1  Dru.  &  War.  268. 

(c)  Duke  on  Charit.  Uses,  84,  85 ;  Bridgman  on  Duke  on  Charit.  Uses,  355 ; 
Christ's  Hospital  v  Hawes,  Bridgman  on  Duke  on  Charit.  Uses,  371 ;  1  Burn's  Eccl. 
Liaw,  226;  Tujfnel  v.  Page,  2  Atk.  37;  Att.-Gen.  v.  Rye,  2  Vem.  453;  and  Eaithby's 
notes;  Incorporated  Society  v.  Richards,  1  Dru.  &  War.  258. 

(d)  Jenner  v.  Harper,  Free.  Ch.  389;  1  Burn's  Bccl.  Law,  226. 

(e)  Damus's  Case,  Moore,  822.  And  see  Att.-Gen.  v.  Syderfin,  cited  and  explained 
7  Ves.,  at  p.  43  n. 

(/)  Smith  v.  Stowell,  1  Ch.  Gas.  195;  ColUson's  Case,  Hob.  136. 


494  EQUITY  JDEISPEUDENCE.  [CH.  XXXI 

charity,  and  governed  in  a  manner  wholly  different  from  that  con- 
templated by  the  testator,  although  there  was  nothing  unlawful  in 
his  intent;  the  Lord  Chancellor  giving  as  his  reason,  Summa  est 
ratio  qucB  pro  religione  fwcit.  So,  where  the  charity  was  for  a  weekly 
sermon  to  be  preached  by  a  person  to  be  chosen  by  the  greatest  part 
of  the  best  inhabitants  of  the  parish,  it  was  treated  as  a  wild  direction ; 
and  a  decree  was  made,  that  the  bequests  should  be  to  maintain  a 
catechist  in  the  parish,  to  be  approved  by  the  Bishop  {g). 

§  1173.  So,  although  the  statute  of  wills  of  Henry  VIII.  did  not 
allow  devises  of  lands  to  corporations  to  be  good,  yet  such  devises  to 
corporations  for  charitable  uses  were  held  good,  as  appointments 
under  the  statute  of  Elizabeth  (/i).  Lord  Chancellor  Cowper,  in  a  case 
where  he  was  called  upon  to  declare  a  charitable  bequest  valid,  not- 
withstanding the  will  was  not  executed  according  to  the  statute  of 
Frauds,  and  in  which  these  cases  were  cited,  observed :  "I  shall  be 
very  loth  to  break  in  upon  the  statute  of  frauds  and  perjuries  in  this 
case,  as  there  are  no  instances  where  men  are  so  easily  imiposed  upon, 
as  thet  time  of  their  dying,  under  the  pretence  of  charity." — "  It  is 
true,  the  charity  of  judges  has  carried  several  cases  on  the  statute 
of  Elizabeth  to  great  lengths ;  and  this  occasioned  the  distinction 
between  operating  by  will  and  by  appointment,  which,  surely,  the 
makers  of  that  statute  never  contemplated  "  {i). 

§  1174.  It  has  been  already  intimated,  that  the  disposition  of 
modern  judges  has  been  to  curb  this  excessive  latitude  of  construction, 
assumed  by  the  Court  of  Chancery  in  early  times.  But,  however 
strange  some  of  the  doctrines  already  stated  may  seem  to  us,  as  they 
have  seemed  to  Lord  Bldon ;  yet  they  cannot  now  be  shaken  without 
doing  that  (as  he  has  said),  in  efEect,  which  no  judge  will  avowedly 
take  upon  himself  to  do,  to  reverse  decisions  that  have  been  acted 
upon  for  centuries  (k). 

§  1175.  A  charity  must  be  accepted  upon  the  same  terms  upon 
which  it  is  given,  or  it  must  be  relinquished  to  the  right  heir;  for 
it  cajinot  be  altered  by  any  new  agreement  between  the  heir  of  the 
donor  and  the  donees  (J).  And  where  several  distinct  charities  are 
given  to  a  parish  for  several  purposes,  no  agreement  of  the  parishioners 
can  alter  or  divert  them  to  any  other  uses  (t7?). 

§  1176.  The  doctrine  of  cy-pres,  as  applied  to  charities,  was 
formerly  pushed  to  a  most  extravagant  length.  But  this  sensible 
distinction  now  prevails,  that  the  court  will  not  decree  the  execution 

ig)  Att.-Gen.  v.  Com.be,  2  Ch.  Cas.  18. 

(h)  Griffith  Flood's  Case,  Hob.  136. 

(i)  Att.-Gen.  V.  Bains,  Free.  Ch.  271.    And  see  Addington  v.  Cann,  3  Atk.  141. 

(k)  Moggridge  v.  Thackwell,  7  Ves.  36,  87. 

,(l)  Att.-Gen.  v.  Piatt,  Eep.  temp.  Finch  221;  Att.-Gen.  v.  Margaret  d  Regius 
Professors,  Cambridge,  1  Vem.  55. 

(m)  Man  v.  Ballet,  1  Vern.  43,  1  Eq.  Abr.  99,  pi.  4;  and  see  Att.-Gen.  v. 
1  Atk.  356 ;  Ambler  373. 


§  1173—1179.]  CHARITIES.  495 

of  the  trust  of  a  charity  in  a  manner  different  from  that  intended, 
except  so  far  as  it  is  seen  that  the  intention  cannot  be  literally 
executed.  In  that  case  another  mode  will  be  adopted,  consistent  with 
the  general  intention;  so  as  to  execute  it,  although  not  in  mode,  yet 
in  substance.  If  the  mode  should  become  by  subsequent  circumstances 
impossible,  the  general  object  is  not  to  be  defeated,  if  it  can  in  any 
other  way  be  attained.  "Where  there  are  no  objects  remaining  to 
take  the  benefit  of  a  charitable  corporation,  the  court  will  dispose 
of  its  revenues  by  a  new  scheme,  upon  the  principle  of  the  original 
charities,  cy-pres  (n).  A  new  scheme  will  not,  however,  be  ordered, 
if  the  institution  is  a  permanent  one,  and  the  object  of  the  testator 
was  to  benefit  that  institution  generally,  although  the  particular  trustee 
named  may  have  died  in  the  lifetime  of  the  testator;  but  the  legacy 
will  be  ordered  to  be  paid  over  to  the  proper  officer  of  the 
institution  (o). 

§  1177.  The  general  rule  is,  that,  if  lands  are  given  in  trust  for 
any  charitable  uses,  which  the  donor  contemplates  to  last  for  ever, 
the  heir  never  oan  have  the  land  back  again  (p).  But  if  it  should 
become  impracticable  to  execute  the  charity  as  expressed,  another 
similar  charity  will  be  substituted  (g). 

§  1178.  When  the  increased  revenues  of  a  charity  are  not 
exhausted  by  the  original  objects,  the  general  rule  as  to  the  applica- 
tion of  such  increased  revenues  is,  that  they  are  not  a  resulting  trust 
for  the  heirs-at-law ;  but  they  are  to  be  applied  to  similar  charitable 
purp'oses  and  to  the  augmentation  of  the  benefits  of  the  charity  (r). 
But  there  must  be  distinguished  those  cases  in  which  the  donor  has 
manifested  a  desire  to  benefit  a  particular  individual,  but  has  burdened 
his  gift  with  charges  in  favour  of  a  charity;  in  this  case  the  charity 
is  not  entitled  to  share  in  the  increased  revenue  (s). 

§  1179.  In  former  times,  the  disposition  of  chancery  to  assist 
charities  was  so  strong,  that  in  equity  the  assets  of  the  testator  were 
held  bound  to  satisfy  charitable  uses  before  debts  or  legacies ;  although 
at  law  the  assets  were  held  bound  to  satisfy  debts  before  charities. 
But,  even  at  law,  charities  were  then  preferred  to  other  legacies  (<). 
And  this,  indeed,  was  in  conform.ity  to  the  civil  law,  by  which 
charitable  legacies  are  preferred  to  all  others.  This  doctrine,  however, 
is  now  altered;  and  charitable  legacies,  in  case  of  a  deficiency  of 
assets,   abate  in  proportion,   as  well  as  other  pecuniary  legacies   (u). 

(n)  Ironmonger's  Co.  v.  Att.-Gen.,  10  CI.  &  F.  908. 

(o)  Walsh  V.  Gladstone,  1  Phill.  290. 

(p)  Att.-Gen.  v.  Bowyer,  3  Ves.  714. 

{q)  In  re  Latymer's  Charity,  L.  E.  7  Bq.  353. 

(r)  Att.-Gen.  v.  Wax  Chandlers'  Co.,  L.  E.  6  H.  L.  1. 

is)  Att.-Gen.  v.  Dean  and  Chapter  of  Windsor,  8  H.  L.  C.  369. 

(t)  High  on  Mortm.  67;  Swinb.  on  Wilk,  Pt.  1,  §  16,  p.  72. 

(m)  Fielding  v.  Bound,  1  Vem.  240,  and  Eaithby's  note  (2). 


496  EQUITY  JUEISPEUDBNCE.  [CH.  XXXI. 

§  1180.  Courts  of  equity  declined  to  marshal  the  testator's  assets, 
in  favour  of  any  charitable  bequests  given  out  of  a  mixed  fund  of  real 
and  personal  estate,  without  any  distinction  whether  the  real  estate 
were  freehold  or  leasehold  estate,  or  pure  personal  estate,  or  mixed 
personal  estate,  and  whether  these  bequests  have  been  particular, 
or  residuary,  by  refusing  to  direct  the  debts  and  other  legacies  to 
be  paid  out  of  the  real  estate,  and  reserving  the  personal  to  fulfil 
the  charity,  although  the  charity  would  be  void  as  to  the  real  estate  (x). 
But  this  has  been  overridden  by  the  Mortmain  and  Charitable  Uses 
Act,  1891  (64  &  56  Vict.  c.  73),  which  empowers  charities  to  take 
land  by  devise,  or  money  directed  to  be  laid  out  in  land,  subject  only 
to  the  obligation  to  convert  or  retain  in  money  the  subject-matter  of 
the  gift. 

§  1181.  It  has  been  already  stated  that  charitable  bequests  are  not 
void  on  account  of  any  uncertainty  as  to  the  persons  or  as  to  the 
objects  to  which  they  are  to  be  applied.  Almost  all  the  cases  on 
this  subject  have  been  collected,  compared,  and  commented  on  by 
Lord  Eldon,  with  his  usual  diligence  and  ability,  in  two  decisions. 
The  result  of  these  decisions  is,  that,  if  the  testator  has  manifested 
a  general  intention  to  give  to  charity,  the  failure  of  the  particular 
mode,  by  which  the  charity  is  to  be  effected,  will  not  destroy  the 
charity.  For.  the  substantial  intention  being  charity,  equity  will 
substitute  another  mode  of  devoting  the  property  to  charitable  pur- 
poses, although  the  formal  intention,  as  to  the  mode,  cannot  be 
accomplished  (y).  The  same  principle  is  applied  when  the  persons  or 
objects  of  the  charity  are  uncertain,  or  indefinite,  if  the  predominant 
intention  of  the  testator  is  still  to  devote  the  property  to  charity  (z). 
Thus  where  there  was  a  bequest  to  "  The  Home  for  the  Homeless," 
27,  Red  Lion  Square,  London,  and  no  such  institution  could  be  found, 
it  was  held  that  the  gift  was  charitable,  and  did  not  fail  (a).  Upon 
a  similar  principle  depends  the  disposition  of  increased  revenue  of 
funds  devoted  to  specified  objects  of  charity  (b). 

§  1182.  All  these  doctrines  proceed  upon  the  same  ground,  that  is, 
the  duty  of  the  court  to  effectuate  the  general  intention  of  the 
testator.  And,  accordingly,  the  application  of  them  ceases  whenever 
such  general  intention  is  not  to  be  found.  If,  therefore,  it  is  clearly 
seen  that  the  testator  had  but  one  particular  object  in  his  mind,  as, 
for  example,  to  build  a  church  if  another  will  find  the  land,  or  to 
purchase   a   presentation    to    a   particular   school,    and    that    purpose 

(x)  In  re  Somers  Cocks,  Wegg  Prosser  v.  Wegg  Prosser,  [1895]  2  Ch.  449. 

(y)  Moggridge  v.  Thackwell,  7  Yes.  36;  Mills  v.  Farmer,  1  Mer.  55,  a.c.  19  Ves. 
483. 

iz)  In  re  Pyne,  Lilley  v.  Att.-Gen.,  [1903]  1  Ch.  83;  In  re  Mann,  Hardy  v. 
Att.-Gen.,  [1903]  1  Ch.  232. 

(a)  In  re  Davis,  Banner  v.  HUlyer,  [1901]  1  Ch.  876. 

(b)  Ante,  §  §  1167,  1178. 


§  1180—1184.]  CHARITIES.  497 

cannot  be  answered,  the  next  of  kin  will  taJie,  there  being,  in  such  a 
case,  no  general  charitable  intention  (c).  Even  in  the  case  of  gifts 
or  bequests  to  superstitious  uses  which  (as  we  have  seen)  are  not 
held  to  be  void,  but  the  funds  are  applied  in  chancery  to  other  lawful 
objects  of  charity  (d),  the  professed  ground  of  the  doctrine  is  (though 
certainly  it  is  a  most  extraordinary  sort  of  interpretation  of  intention) 
that  the  party  has  indicated  a  general  purpose  to  devote  the  property 
to  charity;  and,  therefore,  although  his  specified  object  cannot  be 
accomplished,  yet  his  general  intention  of  charity  is  supposed  to  be 
effectuated  by  a.pplying  the  funds  to  other  charitable  objects.  How 
courts  of  equity  could  arrive  at  any  such  conclusion,  it  is  not  easy  to 
perceive,  unless,  indeed,  where  the  nature  of  the  gift  necessarily  led 
to  tihe  conclusion,  that  the  object  specified  was  a  favourite,  though 
not  an  exclusive,  object  of  the  donor.  To  such  cases,  it  has,  in 
modern  times,  been  practically  and  justly  limited. 

§  1183.  Hence  it  has  become  a  general  principle  in  the  law  of 
charities,  that,  if  the  charity  be  of  a  general,  indefinite,  and  mere 
private  nature,  or  not  within  the  scope  of  the  statute  of  Elizabeth, 
it  will  be  treated  as  utterly  void,  and  the  property  will  go  to  the 
next  of  kin.  For,  in  such  a  case,  as  the  trust  is  not  ascertained,  it 
must  either  go  as  an  absolute  gift  to  the  individual  selected  to 
distribute  it,  or  that  individual  must  be  a  trustee  for  the  next  of 
kin  (e).  If  the  testator  means  to  create  a  trust,  and  the  trust  is  not 
effectually  created,  or  fails,  the  next  of  kin  must  take.  On  the  other 
hand,  if  the  party  selected  to  make  the  distribution  is  to  take  it,  it 
must  be  upon  the  ground  that  the  testator  did  not  intend  to  create 
a  trust,  but  to  leave  it  entirely  to  the  discretion  of  the  party  to  apply 
the  fund  or  not.  The  latter  position  is  repugnant  to  the  very  purpose 
of  the  bequest;  and,  therefore,  the  interpretation  is,  that  it  is  the 
case  of  a  frustrated  and  void  trust  (/).  A  charitable  bequest  to  an 
institution  which  comes  to  an  end  after  the  death  of  the  testator,  but 
before  the  legacy  is  paid,  does  not  lapse  {g). 

§  1184.  It  has  been  made  a  question,  whether  a  court  of  equity, 
sitting  in  one  jurisdiction,  can  execute  any  charitable  bequests  for 
foreign  objects  in  another  jurisdiction.  The  established  doctrine 
seems  to  be  that  the  English  court  will  protect  the  property,  but  will 

(c)  Cherry  v.  Mott,  1  Myl.  &  Cr.  123;  In  re  White's  Trusts,  33  Ch.  D.  449. 

(d)  Ante,  §  1168. 

(e)  Morice  v.  Bishop  of  Durham,  9  "Vee.  399;  10  Ves.  521 ;  Ommanney  v.  Butcher, 
1  Turn.  &  E.  260;  Hunter  v.  Att.-Qen.,  [1899]  A.  C.  809;  In  re  Davidson,  Mintz  v. 
Bourne,  [1909]  1  Ch.  567. 

if)  Morice  v.  Bishop  of  Durham,  9  Ves.  399;  10  Ves.  621;  Fowler  v.  Garlike,  1 
Euss.  &  M.  282;  Corp.  of  Beverley  v.  Att.-Gen.,  6  H.  L.  C.  810;  Att.-Gen.  v.  Dean 
and  Chapter  of  Windsor,  8  H.  L.  C.  369. 

(3)  In  re  Slevin,  Slevin  v.  Hepburn,  [1891]  2  Ch.  236;  In  re  Davis  Hannen  v. 
Hillyer,  [1901]  1  Ch.  876. 

E.J.  32 


498  EQUITY    JURISPRUDENCE.  [CH.    XXXI. 

aot  interf&re  with  the  administration  of  the  trust  (h).  Of  course,  this 
must  be  understood  as  subject  to  the  implied  exception,  that  the 
objects  of  the  charities  are  not  against  the  public  policy  or  laws  of 
the  State  where  they  are  sought  to  be  enforced,  or  put  into  execu- 
tion; for  no  State  is  under  any  obligation:  to  give  effect  to  any  acts 
of  parties  which  contravene  its  own  policy  or  laws.  Upon  this  ground, 
where  a  bequest  was  given  by  the  will  of  a  testator  in  England,  in 
trust  for  certain  nunneries  in  foreign  countries,  it  was  held  void,  and 
the  Court  of  Chancery  refused  to  enforce  it  (z). 

§  1185.  But  every  bequest,  which,  if  it  were  to  be  executed-  in 
England,  would  be  void  under  its  mortmain  laws,  is  not,  as  a  matter 
of  course,  held  to  be  void  solely  on  that  accoimt  when  it  is  to  be 
executed  in  a  foreign  coimtry.  There  must  be  some  other  ingredient, 
making  it  reprehensible  hi  point  of  public  policy  generally,  or  bring- 
ing it  within  the  reach  of  the  Mortmain  Acts.  Thus,  for  example, 
money  bequeathed  by  a  will  to  be  laid  out  in  lands  abroad  (as  in 
Scotland),  may  be  a  valid  bequest,  and  executed  by  an  English  court 
of  equity,  when  money  to  be  laid  out  in  lands  in  England  would 
be  held  a  void  bequest,  as  contrary  to  the  Mortmain  Acts  of 
England  (k). 

§  1186.  Where  money  is  bequeathed  to  charitable  purposes  abroad, 
which  are  to  be  executed  by  persons  within  the  same  territorial 
jurisdiction  where  the  court  of  equity  sits,  the  latter  will  secure  the 
fund,  and  cause  the  charity  to  be  administered  under  its  own  direction. 
But,  where  the  charity  is  to  be  established  abroad,  and  is  to  be 
executed  by  persons  there,  the  court  not  having  any  jurisdiction  to 
administer,  it  will  simply  order  the  money  to  be  paid  over  to  the 
proper  persons  in  the  foreign  country,  who  are  selected  by  the  testator 
as  the  instruments  of  his  benevolence ;  and  will  leave  it  to  the  foreign 
local  tribunals  to  see  to  its  due  administration  (I). 

§  1187.  It  is  clear,  upon  principle,  that  the  Court  of  Chancery, 
merely  in  virtue  of  its  general  jurisdiction  over  trusts,  independently 
of  the  special  jurisdiction  conferred  by  the  statute  of  43rd  Elizabeth, 
oh.  4,  must,  in  many  cases,  have  a  right  to  enforce  the  due  per- 
formance of  charitable  bequests;  for  (as  has  been  well  observed)  the 
jurisdictiqn  of  courts  of  equity,  with  respect  to  charitable  bequests, 
is  derived  from  their  general  authority  to  carry  into  execution  the 
trusts  of  a  will  or  other  instrument,   according  to  the  intention  ex- 

(h)  Att.-Gen.  v.  Lepine,  2  Swanst.  181;  Forbes  v.  Forbes,  18  Beav.  552;  Att.. 
Gen.  V.  Sturge,  19  Beav.  597 ;  In  re  Davis'  Trust,  61  L.  T.  430. 

(t)  De  Garcin  v.  Lawson,  4  Ves.  433,  note.  See  as  to  the  actual  decision  Bourne 
v.  Keane,  [1919]  A.  C. 

(fc)  OUphant  v.  Hendrie,  1  Bro.  C.  C.  571,  and  Mr.  Belt's  note;  Mackintosh  v. 
Townsend,  16  Ves.  330. 

(!)  Emery  v.  Hill,  1  Eusa.  112;  Collyer  v.  Burnett,  Taml.  79;  Mitford  v.  Rey- 
nolds, 1  Phil.  185 ;  Att.-Gen.  v.  Sturge,  19  Beav.  597 ;  In  re  Fraser,  Yates  v.  Fraser, 
22  Ch.  D.  827;  In  re  Davis'  Trusts,  61  L.  T.  430. 


§  1185—1189.]  CHARITIES.  499 

pressed  in  that  will  or  instrument  (m).  We  shall  presently  see  that 
this  is  strictly  true  in  all  cases  where  the  charity  is  definite  in  its 
objects,  is  lawful,  and  is  to  be  executed  and  regulated  by  trustees 
who  are  specially  appointed  for  the  purpose  (n-).  But  there  are  many 
cases  (as  we  shall  also  see)  in  which  the  jurisdiction  exercised  over 
charities  in  England  can  scarcely  be  said  to  belong  to  the  Court  of 
Chancery,  as  a  court  of  equity ;  and  where  it  is  to  be  treated  as  a 
personal  delegation  of  authority  to  the  Chancellor,  or  as  an  act  of 
the  Crown,  through  the  instrumentality  of  that  dignitary  (o). 

§  1188.  The  jurisdiction  exercised  by  tihe  Chancellor,  under  the 
statute  of  43rd  Elizabeth,  ch.  4,  over  charitable  uses,  was  held  to  be 
personal  in  him,  and  not  exercised  in  virtue  of  his  ordinary  or 
extraordinary  jurisdiction  in  chancery;  and  in  this  respect  it  resembled 
the  jurisdiction  exercised  by  him  in  cases  of  idiots  and  lunatics,  which 
was  exercised  purely  as  the  personal  delegate  of  the  Crown  (p). 
Where  a  commission  was  issued  under  that  statute,  any  person, 
excepting  to  the  decree  of  the  commissioners,  was  treated  as  a  plaintiff 
in  an  original  cause  in  chancery,  and  the  respondents  as  defendants ; 
and  in  the  examination  of  witnesses  in  the  cause,  thus  brought  by 
way  of  appeal  before  the  Chancellor,  neither  side  was  bound  by  what 
appeared  before  the  commissioners ;  but  they  might  set  forth  new 
matter,  if  they  thought  proper.  If  it  were  not  considered  on  such 
an  appeal,  as  an  original  cause,  the  court  could  know  nothing  of  the 
merits;  for  the  evidence  before  a  jury,  or  before  the  commissioners 
under  the  commission,  was  not  taken  in  writing,  but  was  vivd  voce; 
and  therefore  it  could  not  be  known  to  the  appellate  court  (g). 

§  1189.  But,  as  the  Court  of  Chancery  might  also  proceed  in 
many,  although  not  in  all,  cases  of  charities  by  original  bill,  as  well 
as  by  commission  under  the  statute  of  Elizabeth,  the  jurisdiction 
became  mixed  in  practice;  that  is  to  say,  the  jurisdiction  of  bringing 
informations  in  the  name  of  the  attorney-general  was  mixed  with 
the  jurisdiction  given  to  the  Chancellor  by  the  statute  (r).  So  that 
it  was  not  always  easy  to  ascertain  in  what  cases  he  acted  as  a 
judge  administering  the  common  duties  of  a  court  of  equity,  and  in 
■what  cases  he  acted  as  a  mere  delegate  of  the  Crovni,  administering  its 
pecuUar  duties  and  prerogatives.  And  again,  there  was  a  distinction 
between  cases  of  charity,  where  the  Chancellor  was  to  act  in  the  Court 
of  Chancery,  and  cases  where  the  charity  was  to  be  administered  by 
the  king,  by  his  sign-manual.  But  in  practice  the  cases  have  often 
been  confounded  from  similar  causes  (s). 

(m)  Att.-Gen.  v.  Ironmongers'  Co.,  2  Myl.  &  K.  581.  (n)  Post,  §  1191. 

(o)  Post,  §  §  1188,  1190. 

(p)  3  Black.  Comm.  427,  428 

(g)  Corporation  of  Burford  v.  Lenthall,  2  Atk.  552;  3  Black.  Comm.  427. 

(t)  Ibid. 

(s)  Moggridge  v.  .Thackwell,  7  "Vee.  83  to  86. 


500  EQUITy  JUEISPEUDENCE.  [CH.  XXXI. 

§■  1190.  The  general  doctrine  in  England  is,  that  the  king,  as 
parens  patrise,  has  a  right  to  guard  and  enforce  all  charities  of  a 
public  nature,  by  virtue  of  his  general  superintending  power  over 
the  public  interests,  where  no  other  person  is  intrusted  with  that 
right  (t).  But  there  does  seem  to  be  some  difficulty  in  accepting  the 
position  advanced  by  the  learned  author  that  vsnherever  money  is  given 
to  charity  generally,  and  indefinitely,  without  any  trustees  pointed 
out,  who  are  to  administer  it,  it  might  be  considered  as  a  personal 
trust,  devolved  upon  the  king,  as  a  constitutional  trustee,  to  be  ad- 
ministered by  him,  for  the  Crown  cannot  be  a  trustee.  The  delegation 
to  the  Lord  Chancellor  by  sign-msjiual  may  have  been  in  the  nature 
of  tne  endorsement  ' '  let  right  be  done  ' '  in  other  cases,  where  a 
petition  of  right  is  presented  for  leave  to  implead  the  king  in  his 
own  court.  That  the  earlier  ground  stated  by  the  author  is  the 
correct  one,  is  supported  by  the  cases  which  establish  that  the 
attorney-general  must  be  made  a  party  to  all  judicial  proceedings  for 
administering  a  charity  whether  by  information  (m)  or  by  summary 
process  (a;).  In  such  a  case,  it  is  not,  ordinarily,  very  important 
whether  the  Chancellor  acts  as  the  special  delegate  of  the  Crown,  or 
the  king  acts  under  the  sign-manual  through  his  Chancellor  guiding 
his  discretion.  In  practice,  however,  it  was  found  very  difficult  to 
distinguish  in  what  cases  the  one  or  the  other  course  ought,  upon  the 
strict  principles  of  prerogative,  to  be  adopted.  For,  vsihere  money  has 
been  given  to  trustees  for  charity  generally,  without  any  objects 
selected,  the  charity  has  sometimes  been  administered  by  the  king, 
under  his  sign-manual,  and  sometimes  by  the  Court  of  Chancery. 
Lord  Eldon,  after  a  full  review  of  all  the  cases,  came  to  the  conclusion 
(which  is  now  the  settled  rule)  that,  where  there  is  a  general  indefinite 
purpose  of  charity,  not  fixing  itself  upon  any  particular  object,  the 
disposition  and  administration  of  it  are  in  the  king  by  his  sign-manual. 
But  where  the  gift  is  to  trustees,  with  general  objects,  or  with  some 
particular  objects  pointed  out,  there  the  Court  of  Chancery  would 
take  upon  itself  the  administration  of  the  charity,  and  execute  it 
under  a  scheme  to  be  reported  by  a  master  (y). 

§  1191.  But  where  a  charity  is  definite  in  its  objects,  and  lawful 
in  its  creation,  and  it  is  to  be  executed  and  regulated  by  trustees, 
whether  they  are  private  individuals  or  a  corporation ;  there,  the 
administration  properly  belongs  to  such  trustees;  and  the  king,  as 
parens  patrix,  has  no  general  authority  to  regulate  or  control  the 
administration  of  the  funds  (a).  In  all  such  cases,  however,  if  there  be 
any  abuse   or  misuse   of  the  funds   by  the   trustees,    the   court   will 

(t)  3  Black.  Coram.  437;  Moggridge  v.  Thackwell,  7  Ves.  35. 

(u)  Wellbeloved  v.  Jones,  1  Sim.  &  St.  40. 

(x)  Att.-Qen.  v.  Earl  of  Stamford,  1  Phil.  737. 

iy)  Moggridge  v.  Thackwell,  7  Vea.  36. 

(z)  Walsh  V.  Gladstone,  1  Ph.  29;  In  re  Lea,  Lea  v.  Cooke,  84  Oh.  D.  528. 


§  1190— 1192b.]  CHARITIES.  601 

interpose,  at  the  instance  of  the  attorney-general,  or  the  parties  in 
interest,  to  correct  such  abuse  or  misuse  of  the  funds.  But,  in  such 
cases,  the  interposition  of  the  court  is  properly  referable  to  its  general 
jurisdiction,  as  a  court  of  equity,  to  prevent  abuse  of  a  trust,  and  not 
to  any  original  right  to  direct  the  management  of  a  charity,  or  the 
conduct  of  the  trustees  (a.).  Indeed,  if  the  trustees  of  the  charity 
should  grossly  abuse  their  trust,  a  court  of  equity  may  go  the  length  of 
taking  it  away  from  them,  and  commit  the  administration  of  the 
charity  to  other  hands  (b).  But  this  is  no  more  than  the  court  will  do, 
in  proper  cases,  for  any  gross  abuse  of  other  trusts. 

§  1191a.  Some  doctrines  on  the  subject  of  what  constitutes  such 
an  abuse  or  misuse  of  charitable  trusts,  and  especially  of  trusts  of  a 
religious  nature,  by  trustees,  are  of  such  deep  interest  and 
general  application  that  they  seem  to  require  a  brief  notice  in  this 
place.  Where  property  is  devoted  to  religious  purposes,  it  is  not 
competent  for  the  trustees  to  depart  from  the  actual  or  presumed 
intention  of  the  donors  that  the  religious  doctrines  which  they  them- 
selves professed  should  be  taught  (c),  and  where  the  trust  instrument 
is  silent  upon  the  subject,  it  is  provided  by  section  2  of  7  &  8  Vict. 
c.  5,  that  in  the  case  of  protestant  Dissenters,  twenty-five  years' 
continuous  usage  immediately  preceding  the  suit  is  tO'  be  deemed 
conclusive  evidence  on  the  question.  It  is  no  cause  for  the  removal 
of  a  trustee  that  he  does  not  profess  the  religious  belief  or  doctrine 
taught  (d). 

§  1192.  It  seems,  that,  with  a  view  to  encourage  the  discovery  of 
charitable  donations,  given  for  indefinite  purposes,  it  is  the  practice  for 
the  Crown  to  reward  the  persons  who  make  the  communication  if  they 
can  bring  themselves  within  the  scope  of  the  charity,  by  giving  them 
a  part  of  the  fund ;  and  the  like  practice,  whether  well  or  ill  founded, 
takes  place,  also,  in  relation  to  escheats  (e). 

§  1192a.  A  contingent  gift  over  from  one  charity  to  another  is  not 
affected  by  the  rule  against  perpetuities  (/).  But  a  contingent  gift  over 
to  an  individual  is  so  affected  (g).  The  interest  of  a  charity  in  an  original 
gift  of  land  must  arise  within  the  limits  of  the  rule  (h). 

§  1192b.  It  seems,  that  the  Statute  of  Limitations,  and  the  bar 
from  lapse  of  time,  will  not  be  allowed  to  prevail  in  cases  of  charitable 

(a)  Att..Gen.  v.  Heelis,  2  Sim.  &  St.  67 ;  Att.-Gen.  v.  Mayor  of  Exeter,  2  Euss. 
363;  Att.-Gen.  v.  St.  John's  Hospital,  2  De  G.  J.  &  S.  621. 

(b)  Drummond  v.  Att.-Gen.  (Ireland),  2  H.  L.  C.  837. 

(c)  Att.-Gen.  v.  Pearson,  3  Mer.  353;  Shore  v.  Wilson,  9  CI.  &  P.  353;  General 
Assembly  of  Free  Church  of  Scotland  v.  Lord  Overtown,  [1904]  A.  C.  515.  See  In  re 
Perry's  Almshouses,  [1899]  1  Ch.  21. 

(d)  Att.-Gen.  v.  Clifton,  32  Beav.  596;  Att.-Gen.  v.  St.  John's  Hospital,  Bath, 
32  Beav.  696. 

(e)  Per  Tjord  BIdon,  in  Mongridge  v.  Thackwell,  7  Ves.  36,  71. 
(/)  Christ's  Hospital  v.   Grainger,  1  Mac.  &  G.  460. 

ig)  In  re  Bower,  Lloyd  Phillips  v.  Davis,  [1893]  2  Ch.  491. 
(h)  Worthing  Corporation  v.  Heather,  [1906]  2  Ch.  632. 


502  EQUITY    JURISPRUDENCE.  [CH.    XXXI. 

trusts,  in  the  same  manner  as  it  would  in  cases  of  mere  private  trusts. 
Thus,  in  the  case  of  a  charitable  trust,  where  a  corporation  had  pur- 
chased with  notice  of  the  trust,  and  had  held  the  property  under  an 
adverse  title  for  one  hundred  and  fifty  years,  it  was  decided  that  the 
corporation  should  reconvey  the  property  upon  the  original  trusts  (i). 

§  1193.  These  are  the  principal  doctrines  and  decisions,  under  the 
statute  of  Elizabeth,  respecting  charitable  uses,  which  it  seems  most 
important  to  bring  in  review  before  the  learned  reader.  It  may  not 
be  useless  to  add,  that  the  Statute  of  Mortmain  and  Charities,  of  the 
9  Geo.  2,  c.  36,  very  materially  narrowed  the  extent  and  operation  of 
the  statute  of  Elizabeth ;  and  formed  a  permanent  barrier  against  what 
the  statute  declared  to  be  a  "public  mischief,"  which  "  had  of  late 
greatly  increased,  by  many  large  and  improvident  alienations  or  dis- 
positions, made  by  languishing  and  dying  persons,  or  others,  to  uses 
called  charitable  uses,  to  take  place  after  their  deaths,  to  the  disherison 
of  their  lawful  heirs.-"  This  was  compassed  by  a  prohibition  of  all 
alienations  of  land  except  by  deed  executed  by  the  donor  twelve  months 
before  his  death  and  enrolled.  Many  statutes  were  subsequently  passed 
limiting  the  operation  of  the  statute  in  favour  of  certain  objects,  but  the 
principal  Act  was  repealed  by  the  Mortmain  and  Charitable  Uses  Act, 
1887  (51  &  52  Vict.  c.  42).  The  whole  question  is  now  regulated  by  the 
Act  of  1888  and  the  Mortmain  and  Charitable  Uses  Act,  1891  (54  &  55 
Vict.  c.  73),  which  applies  to  the  wills  of  testators  dying  after  the  pass- 
ing of  the  Act.  Stated  shortly  an  alienation  of  land  inter  vivos,  unless 
upon  a  sale,  must  be  by  deed  executed  in  the  presence  of  two  witnesses 
twelve  months  before  the  death  of  the  assuror,  including  in  those  twelve 
months  the  days  of  the  making  of  the  assurance  and  of  the  death  and 
enrolled  in  the  Central  Office  of  the  Supreme  Court  of  Judicature  within 
six  months  after  the  execution  thereof.  If  the  uses  are  declared  by  a 
separate  instrument,  the  separate  instrument  must  be  so  enrolled  within 
six  months  after  the  making  of  the  assurance  of  the  land.  Personal 
estate  being  stock  in  the  public  funds,  if  directed  to  be  laid  out  in  the 
purchase  of  land  for  charity,  must  be  transferred  in  the  public  books  at 
least  six  months  before  the  death  of  the  assuror,  including  in  those  six 
months  the  days  of  the  transfer  and  of  the  death.  Other  personal  estate, 
if  directed  to  be  laid  out  in  the  purchase  of  land  for  charity,  must  be 
assured  with  same  formalities  as  if  the  subject-matter  were  land.  As 
regards  gifts  by  will,  land  may  now  be  assured  by  will  subject  to  a 
liability  to  convert  into  money  within  twelve  months  or  such  extended 
time  as  the  Charity  Commissioners  or  the  Court  may  allow,  and  money 
directed  to  be  laid  out  in  the  purchase  of  land  for  charity  is  discharged 
from  this  liability.  The  Court  or  the  Charity  Commissioners  may  sanc- 
tion the  retention  of  land  "  for  actual  occupation  for  the  purposes  of  the 
charity  and  not  as  an  investment."    Gifts  to  the  universities  of  Oxford, 

(t)  Att.-Gen.  v.  Christ's  Hospital,  3  Myl.  &  K.  344. 


§    1193.]  CHARITIES.  603 

Cambridge,  London,  Durham,  and  the  Victoria  and  the  colleges  thereof, 
or  any  of  the  colleges  of  Eton,  Winchester,  Westminster,  and  Keble 
College,  are  exempted  entirely  from  the  operation  of  the  Act.  Gifts  of 
land  for  a  public  park  (limited  to  twenty  acres  if  by  will),  a  school-house 
for  an  elementary  school,  or  for  a  public  museum  require  enrolment  in 
the  books  of  the  Charity  Commissioners,  within  six  months  after  the 
execution  of  the  deed,  or  within  six  months  aiter  the  death  of  the 
testator  in  the  case  of  a  will. 


504  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 


CHAPTER    XXXII. 


IMPLIED     TRUSTS. 


§  1195.  We  have  now,  in  pursuance  of  the  plan  already  laid  down, 
gone  over  some  of  the  most  important  branches  of  Express  Trusts  (a), 
and  shall  next  proceed  to  the  consideration  of  some  of  the  more  usual 
cases  of  Implied  Trusts,  including  therein  cases  of  constructive  and 
resulting  trusts.  Implied  Trusts  may  be  divided  into  two  general 
classes :  first,  those  which  stand  upon  the  presumed  intention  of  the 
parties ;  secondly,  those  which  are  independent  of  any  such  intention, 
and  are  forced  upon  the  conscience  of  the  party  by  operation  of  law ; 
as,  for  example,  in  cases  of  meditated  fraud,  imposition,  notice  of  an 
adverse  equity,  and  other  cases  of  a  similar  nature.  It  has  been  said 
to  be  a  general  rule  that  the  law  never  implies,  and  a  court  of  equity 
never  presumes,  a  trust,  except  in  case  of  absolute  necessity  (b).  Per- 
haps this  is  stating  the  doctrine  a  little  too  strongly.  The  more  correct 
exposition  of  the  general  rule  would  seem  to  be,  that  a  trust  is  never 
presumed  or  implied,  as  intended  by  the  parties,  unless,  taking  all  the 
circumstances  together,  that  is  the  fair  and  reasonable  interpretation 
of  their  acts  and  transactions  (c). 

§  1196.  And,  first,  let  us  consider  such  implied  trusts  as  are  founded 
in  the  supposed  intention  of  the  parties.  The  most  simple  form,  perhaps, 
in  which  such  an  implied  trust  can  be  presented,  is  that  of  money,  or 
other  property,  delivered  by  one  person  to  another,  to  be  by  the  latter 
paid  or  delivered  over  to  and  for  the  benefit  of  a  third  person.  In  such 
a  case  (as  we  have  seen)  (d)  the  party  so  receiving  the  money,  or  other 
property,  holds  it  upon  a  trust;  a  trust  necessarily  implied  from  the 
nature  of  the  transaction,  in  favour  of  such  beneficiary,  although  no 
express  agreement  has  been  entered  into,  to  that  effect  (e).  But  even 
here,  the  trust  is  not,  under  all  circumstances,  absolute ;  for  if  the  trust 
is  purely  voluntary,  and  without  any  consideration,  and  the  beneficiary 
has  not  become  a  party  to  it,  by  his  express  assent  after  notice  of  it, 
it  is  revocable ;  and  if  revoked,  then  the  original  trust  is  gone,  and  an 
implied  trust  results  in  favour  of  the  party  who  originally  created  it  (/). 

(a)  Ante,  §  §  980  to  982. 

(b)  Lord  Nottingham,  Cook  v.  Fountain,  3  Swanst.  591,  592. 

(c)  Fordyce  v.  Willis,  3  Bro.  C.  C.  577 ;  Cocks  v.  Smith,  2  L.  J.  N.  S.  Ch.  205. 

(d)  Ante,  §  1041. 

(e)  Com.  Dig.  Chancery,  4  W.  5. 

(/)  Priddy  v.  Rose,  3  Meriv.  102;  Page  v.  Broom,  4  Euas.  6;  Wallwyn  v.  Coutts, 


§    1195 — 1198.]  IMPLIED     TRUSTS.  505 

§  1196a.  Another  form  in  which  a  resulting  trust  may  appear,  is 
where  there  are  certain  trusts  created  either  by  will  or  deed,  which  fail 
in  whole  or  in  part ;  or  which  are  of  such  an  indefinite  nature  that  courts 
of  equity  will  not  carry  them  into  effect;  or  which  are  illegal  in  their 
nature  and  character ;  or  which  are  fully  executed,  and  yet  leave  an  un- 
exhausted residuum.  In  all  such  cases,  there  will  arise  a  resulting  trust 
to  the  party  creating  the  trusts,  or  to  his  heirs  and  legal  representatives, 
as  the  case  may  require  (g). 

§  1196b.  But  it  was  early  held,  in  a  case  where  the  subject  is  very 
extensively  discussed  by  eminent  judges,  Lord  Mansfield  dissenting 
from  the  decision  (h),  that  where  the  trusts  had  all  failed,  by  the  decease 
of  the  cestui  que  trust,  and  the  grantor  was  also  deceased,  without  heirs, 
making  a  case  for  an  escheat  to  the  Crown,  or  lord  of  the  manor,  if  the 
legal  title  had  remained  in  the  grantor,  a  court  of  equity  had^no  power 
to  compel  the  trustee  to  convey  the  estat-e  to  the  Crown,  in  order  to 
perfect  the  right  of  escheat.  This  virtually,  or  rather  practically  (for 
the  point  was  expressly  left  undecided),  established  the  right  of  the 
trustee  to  hold  the  land.  In  consequence,  probably,  of  the  great  weight 
of  Lord  Mansfield's  authority  in  the  opposite  direction,  the  question  was 
regarded,  by  the  profession  in  Westminster  Hall,  for  a  long  time,  as 
hanging  in  chibio.  But  subsequent  decisions  of  very  eminent  judges, 
finally  confirmed  the  doctrine  of  the  principal  case  in  favour  of  the  claim 
of  the  Crown  (i).  Lord  Mansfield's  view  has  since  been  established  by 
statute  by  the  Intestate  Estates  Act,  1884  (47  &  48  Vict.  c.  71),  s.  4  (k). 

§  1197.  Another  common  transaction,  which  gives  rise  to  the  pre- 
sumption of  an  implied  resulting  use  or  trust,  is,  where  a  conveyance 
is  made  of  land  or  other  property  without  any  consideration,  express 
or  implied,  of  any  distinct  use  or  trust  stated.  In  such  a  case,  the 
intent  is  presumed  to  be,  that  it  shall  be  held  by  the  grantee  for  the 
benefit  of  the  grantor,  as  a  resulting  trust  (I).  But  if  there  be  an 
express  declaration,  that  it  is  to  be  in  trust,  or  for  the  use  of  another 
person,  nothing  will  be  presumed  against  such  a  declaration.  And  if 
there  be  either  a  good  or  a  valuable  consideration,  there  equity  will 
immediately  raise  a  use  or  trust  correspondent  to  such  consideration  (m), 
in  the  absence  of  any  controlling  consideration  or  other  circumstances. 

§  .1198.  This  is  in  strict  conformity  to  the  rule  of  the  common  law, 
applied  to  resulting  uses,  which  indeed  were  originally  nothing  but 

3  Meriv.  707;  s.c.  3  Sim.  14;  GarraTd  v.  Lord  Lauderdale,  8  Sim.  1;  s.c.  2  Eusb.  & 
Myl.  451 ;  Leman  v.  Whitely,  4  Euse.  427. 

(g)  Stubbs  V.  Sargon,  2  Keen  255 ;  s.c.  3  Myl.  &  Cr.  507 ;  Corporation  of  Glouces- 
ter V.  Osborn,  1  H.  L.  C.  272 ;  In  re  Abbott  Fund,  Smith  v.  Abbott,  [1900]  2  Ch.  326. 

(h)  Burgess  v.  Wheate,  1  W.  Bl.  133;  s.c.  1  Eden  Ch.  177. 

(i)  Cox'v.  Parker,  22  Beav.  168. 

(fc)  See  In  re  Wood,  Att.-Gen.  v.  Anderson,  [1896]  2  Ch.  596. 

(/)  Dyer  v.  Dyer,  2  Cox,  92;  Grey  v.  Grey,  2  Swanst.  694;  Christy  v.  Courtenay, 
13  Beav.  96 ;  In  re  Orme,  50  L.  T.  51 ;  The  Venture,  [1908]  P.  218. 

(m)  See  post,  §  1199. 


506  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

resulting  trusts.  Thus  a  feoSment,  made  without  consideration,  was, 
at  a  very  early  period  of  the  common  law,  held  to  be  made  for  the  use 
of  the  feoffor  (n).  Lord  Bacon,  after  repudiating  a  distinction  set  up  in 
Dyer,  146 fc,  assigning  the  origin  of  this  doctrine  to  the  time  of  the  statute 
quia  emptores,  said:  "  The  intendment  of  an  use  to  the  feoffor,  where 
the  feoffment  was  made  without  consideration,  grew  long  after  when 
uses  waxed  general ;  and  for  this  reason  :  because,  when  feoffments  were 
made,  it  grew  doubtful  whether  the  estates  were  in  use  or  in  purchase, 
because  purchases  were  things  notorious,  and  uses  were  things  secret. 
The  Chancellor  thought  it  more  convenient  to  put  the  purchaser  to  prove 
his  consideration,  than  the  feoffor  and  his  heirs  to  prove  the  trust;  and 
so  made  the  intendments  towards  the  use,  and  put  the  proof  upon  the 
purchaser  "  (o).  Be  the  origin  of  the  doctrine,  however,  as  it  may,  it 
is  firmly  established  in  equity  jurisprudence  in  matters  of  trust.  And 
it  is  not  in  any  manner  affected  by  the  provisions  of  the  Statute  of 
Frauds  of  29  Car.  2,  c.  3;  for  that  statute  contains  an  express  exception 
of  trusts  ' '  which  shall  or  may  arise  or  result  by  the  implication  or  con- 
struction, of  law,  or  be  transferred  or  extinguished  by  an  act  or 
operation  of  law"  (p). 

§  1199.  The  same  principle  applies  to  cases  where  a  man  makes 
a  feoffment,  or  other  conveyance,  and  parts  with  or  limits  a  particular 
estate  only,  and  leaves  the  residue  undisposed  of.  In  such  a  case  the 
residue  will  result  to  the  use  of  the  feoffor  or  grantor,  even  though  the 
feoffment  or  conveyance  be  made  for  a  consideration.  For  it  is  the 
intent  which  guides  the  use ;  and,  here,  the  party  having  expressly 
declared  a  particular  estate  of  the  use,  the  presumption  is,  that  if  he 
had  intended  to  part  with  the  residue,  he  would  have  declared  that  in- 
tention also  (g).  Where  a  consideration,  although  purely  nominal,  is 
stated  in  the  deed,  the  cases  fall  under  two  categories.  If  no  uses  are 
declared,  the  grantee  will  take  the  whole  use ;  and  there  will  be  no 
resulting  use  for  the  grantor ;  because  the  payment,  even  of  a  nominal 
consideration,  shows  an  intent,  that  the  grantee  should  have  some  use ; 
and  no  other  being  specified,  he  must  take  the  whole  use  (r).  But, 
where  a  particular  use  is  declared,  there  the  undisposed  of  interest  in 
the  use  results  to  the  grantor;  for  the  presumption,  that  the  grantor 
meant  to  part  with  the  whole  use,  is  thereby  repelled  (s). 

(n)  2  Black.  Comm.  330;  Dyer  v.  Dyer,  2  Cox  92,  93;  post,  §  1201. 

(o)  Bacon  on  Uses,  317. 

(p)  Co.  Litt.  290  b,  Butler's  note,  §  8;  Bac.  Abr.  Trusts  (C) ;  Lamplugh  v.  Lamp- 
lugh,  1  P.  Will.  112,  113. 

(9)  Co.  Litt.  23;  Shortridge  v.  Lamplugh,_2  Ld.  Eaym.  798;  Fybus  v.  Mitford, 
1  Vent.  372;  Benbow  v.  Townsend,  1  Myl.  &  K.  506. 

(r)  Barker  v.  Keete,  Freeni.  K.  B.  24,  adopting  argument  in  Porter's  Case,  1  Co. 
fo.  24. 

(s)  As  the  doctrine  of  resulting  uses  and  trusts  is  founded  upon  a  mere  implica- 
tion of  law,  it  may  be  proper  here  to  observe,  that  parol  evidence  i«  generally  admis- 
sible for  the  purpose  of  rebutting  such  resulting  use  or  trust.  Benbow  v.  Townsend, 
1  Myl.  &  K.  S96 ;  post,  §  1202. 


§    1199—1202.]  IMPLIED     TRUSTS.  507 

§  1200.  The  same  principle  applies  to  cases  where  the  whole  of  the 
interest  in  land  or  personalty  is  conveyed  or  given  by  will,  but  for  parti- 
cular objects  and  purposes,  or  on  particular  trusts.  In  all  such  cases, 
if  those  objects  or  purposes  or  trusts,  by  accident  or  otherwise,  fail,  and 
do  not  take  effect;  or,  if  they  are  all  accomplished,  and  do  not  exhaust 
the  whole  property;  there,  a  resulting  trust  will  arise,  for  the  benefit  of 
the  grantor  or  testator  or  for  his  heir  or  next  of  kin  (t). 

§  1201.  Upon  similar  grounds,  where  a  man  buys  land  in  the  name 
of  another,  and  pays  the  consideration  money,  the  land  will  generally 
be  held  by  the  grantee  in  trust  for  the  person  who  so  pays  the  considera- 
tion money  (w).  This,  as  an  established  doctrine,  is  now  not  open  to 
controversy.  But  there  are  exceptions  to  it,  which  stand  upon  peculiar 
reasons  (to  be  presently  noticed),  and  which  are  quite  consistent  with 
the  general  doctrine.  "  The  clear  result  of  all  the  cases,  without  a  single 
exception,  is  "  (as  has  been  well  said  by  an  eminent  judge),  "  that  the 
trust  of  a  legal  estate,  whether  freehold,  copyhold,  or  leasehold ;  whether 
taken  in  the  names  of  the  purchaser  and  others  jointly,  or  in  the  name 
of  others,  without  the  purchaser;  whether  in  one  name  or  several; 
whether  jointly  or  successively  (successive),  results  to  the  man  who 
advances  the  purchase-money.  This  is  a  general  proposition,  supported 
by  all  the  cases,  and  there  is  nothing  to  contradict  it.  And  it  goes  on  a 
strict  analogy  to  the  rule  of  the  common  law,  that,  where  a  feoffment 
is  made  without  consideration,  the  use  results  to  the  feoffor"  (x).  In 
truth,  it  has  its  origin  in  the  natural  presumption,  in  the  absence  of  all 
rebutting  circumstances,  that  he  who  supplies  the  money  means  the 
purchase  to  be  for  his  own  benefit,  rather  than  for  that  of  another;  and 
that  the  conveyance  in  the  name  of  the  latter,  is  a  matter  of  conveni- 
ence and  arrangement  between  the  parties,  for  other  collateral  purposes'. 
The  same  doctrine  is  applied  to  cases  where  securities  are  taken  in  the 
name  of  another  person.  As  if  A.  takes  a  bond  in  the  name  of  B.,  for 
a  debt  due  to  himself,  B.  will  be  a  trustee  for  A.  for  the  money  {y). 

§  1201a..  There  is  an  exception  to  the  doctrine  of  a  resulting  trust 
in  favour  of  a  purchaser,  who  pays  the  money,  and  takes  the  conveyance 
in  the  name  of  a  third  person,  which  stands  upon  a  principle  of  public 
policy,  and  that  is,  that  courts  of  equity  will  never  raise  a  resulting 
trust,  where  it  would  contravene  the  provisions  of  a  statute  or  would 
agsist  the  parties  in  evading  the  provisions  («). 

§  1202.  But  there  are  other  exceptions  to  the  doctrine  of  a  resulting 
or  implied  trust,  even  where  the  principal  has  paid  the  purchase-money, 

(t)  Tregonwell  v.  Sydenham,  3  Dow  194 ;  Northen  v.  Carnegie,  i  Drew  587 ; 
Childers  v.  Ghilders,  1  De  G.  &  J.  482 ;  Ramsay  v.  Shelmerdine,  11  Jur.  N.  S.  903 ; 
In  re  Abbott  Fund,  Smith  v.  Abbott,  [1900]  2  Ch.  326. 

(u)  Rider  v.  Kidder,  10  Ves.  360. 

(x)  Lord  Chief  Baron  Byre,  in  Dyer  v.  Dyer,  2  Cox  92,  93. 

(y)  Ebrand  v.  Dancer,  2  Ch.  C.  26 ;  s.c.  1  Bq.  Abr.  382,  pi.  11 ;  2  Mad.  Pr.  Ch. 
101 ;  Lloyd  v.  Read,  1  P.  Will.  607  ;  Rider  v.  Kidder,  10  Ves.  366. 

\z)  Curtis  V.  Perry,  6  Ves.  739.    See  The  Venture,  [1908j  P.  218. 


508  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

as  has  been  already  intimated,  or,  perhaps,  more  properly  speaking,  as 
the  resulting  or  implied  trust  is,  in  such  cases,  a  mere  matter  of  pre- 
sumption, it  may  be  rebutted  by  the  other  circumstances  established  in 
evidence,  and  even  by  parol  proofs,  which  satisfactorily  contradict  it  (a). 
And  resulting  or  implied  trusts  in  such  cases  may,  in  like  manner,  be 
rebutted,  as  well  to  part  of  the  land,  as  to  part  of  the  interest  in  the 
land  purchased  in  the  name  of  another  (6).  Thus,  where  A.  took  a  mort- 
gage in  the  name  of  B.,  declaring  that  he  intended  the  mortgage  to  be 
for  B.'s  benefit,  and  that  the  principal,  after  his  own  death,  should  be 
B.'s;  and  A.  received  the  interest  therefor  during  his  lifetime;  it  was 
held  that  the  mortgage  belonged  to  B.  after  the  death  of  A.  (c).  But 
a  more  common  case  of  rebutting  the  presumption  of  a  trust  is,  where 
the  purchase  may  be  fairly  deemed  to  be  made  for  another  from  motives 
of  natural  love  and  affection.  Thus,  for  example,  if  a  parent  should  pur- 
chase in  the  name  of  a  son,  the  purchase  would  be  deemed,  prima  facie, 
as  intended  as  an  advancement;  so  as  to  rebut  the  presumption  of  a 
resulting  trust  for  the  parent  (d).  But  this  presumption,  that  it  is  an 
advancement,  may  be  rebutted  by  evidence  manifesting  a  clear  inten- 
tion, that  the  son  shall  take  as  a  trustee  (e). 

§  1203.  The  moral  obligation  of  a  parent  to  provide  for  his  children 
is  the  foundation  of  this  exception,  or  rather  of  this  rebutter  of  a  pre- 
sumption ;  since  it  is  not  only  natural,  but  reasonable  in  the  highest 
degree,  to  presume,  that  a  parent,  by  purchasing  in  the  name  of  a  child, 
means  a  benefit  for  the  latter,  in  discharge  of  this  moral  obligation,  and 
also  as  a  token  of  parental  affection.  This  presumption  in  favour  of  the 
child,  being  thus  founded  in  natural  affection,  and  moral  obligation, 
ought  not  to  be  frittered  away  by  nice  refinements.  It  is,  perhaps, 
rather  to  be  lamented,  that  it  has  been  suffered  to  be  broken  in  upon 
by  any  sort  of  evidence  of  a  merely  circumstantial  nature. 

§  1204.  The  same  doctrine  applies  to  the  case  of  securities  taken  in 
the  name  of  a  child.  The  presumption  is,  that  it  is  intended  as  an 
advancement,  unless  the  contrary  is  established  in  evidence  (/).  And 
the  like  presumption  exists  in  the  case  of  a  purchase  by  a  husband  in 
the  name  of  his  wife,  and  of  securities  taken  in  her  name  (g).  Indeed, 
the  presumption  was  stronger  in  the  case  of  a  wife  than  of  a  child ;  for 
she  could  not  formerly  be  the  trustee  for  her  husband. 

1205.  Hence,  also,  it  is,  that  where  a  purchase  is  made  by  a  father 
in  the  joint  names  of  himself  and  of  a  child,  if  the  father  dies,  the  child 

(o)  Dyer  v.  Dyer,  2  Cox  92 ;  Deacon  v.  Colquhoun,  2  Drew.  21. 
(6)  Benbow  v.  Townsend,  1  Myl.  &  K.  506. 

(c)  Ibid. 

(d)  Dyer  v.  Dyer,  2  Cox  92;  Comminsioner  of  Stamp  Duties  v.  Byrnes,  [1911] 
A.  C.  386. 

(el  Childers  v.  Ghilders,  1  De  G.  &  J.  482;  Curtis  v.  Worthington,  1  Ch.  D.  419. 
(/)  Scaioin  v.  Scawin,  1  Y.  &  C.  Ch.  65 ;  Christy  v.  Courtenay,  13  Beav.  92 ;  Stock 
V.  McAvoy,  L.  B.  15  Bq.  56. 

ig)  Dunbar  v.  Dunbar,  [1909]  2  Ch.  369. 


§    1203—1206.]  IMPLIED     TRUSTS.  609 

will  hold  the  estate,  and  have  the  benefit  thereof  by  survivorship  against 
the  heir-at-law  of  the  father,  and  against  all  volunteers,  claiming  under 
the  father,  and  also  against  purchasers  from  him  with  notice  (h).  So, 
where  a  father  transferred  stock  from  his  own  name  into  the  joint  names 
of  his  son,  and  of  a  person  whom  the  father  and  son  employed  as  their 
banker  to  receive  dividends,  and  the  father  told  the  banker  to  carry  the 
dividends,  as  they  were  received,  to  the  son's  account,  and  they  were 
accordingly  received  and  enjoyed  by  the  son  during  his  father's  lifetime ; 
it  was  held,  that  the  transfer  created  an  executive  trust  for  the  son,  and 
that  he  was  absolutely  entitled  to  the  stock  (i). 

§  1206.  In  the  case  of  joint  purchases  made  by  two  persons,  who 
advance  and  pay  the  purchase-money  in  equal  proportions  and  take 
a  conveyance  to  them  and  their  heirs,  it  constitutes  a  joint  tenancy, 
that  is,  a  purchase  by  them  jointly  of  the  chance  of  survivorship ;  and 
of  course  the  survivor  will  take  the  whole  estate.  This  is  the  rule  at 
law ;  and  it  prevails  also  in  equity  under  the  same  circumstances ;  for 
unless  there  are  controlling  t3ircumstances,  equity  follows  the  law  (k). 
But,  wherever  such  circumstances  occur,  courts  of  equity  will  lay  hold 
of  them  to  prevent  a  survivorship  and  create  a  trust;  for  joint  tenancy 
is  not  favoured  in  equity  (I).  Thus  if  a  joint  purchase  is  made  in  the 
name  of  one  of  the  purchasers,  and  the  other  pays  or  secures  his  share 
of  the  purchase-money,  he  will  be  entitled  to  his  share  as  a  resulting 
trust  (m).  So,  if  two  persons  advance  a  sum  of  money  by  way  of  mort- 
gage, and  take  a  mortgage  to  them  jointly,  and  one  of  them  dies,  the 
survivor  shall  not  have  the  whole  money  due  on  the  mortgage,  but  the 
representative  of  the  deceased  party  shall  have  his  proportion  as  a  trust; 
for  the  nature  of  the  transaction,  as  a  loan  of  money,  repels  the  pre- 
sumption of  an  intention  to  hold  the  mortgage  as  a  joint  tenancy  (n). 
So,  if  two  persons  jointly  purchase  an  estate,  and  pay  unequal  propor- 
tions of  the  purchase-money,  and  take  the  conveyance  in  their  joint 
names,  in  case  of  the  death  of  either  of  them  there  will  be  no  survivor- 
ship ;  for  the  very  circumstance  that  they  have  paid  the  money  in  un- 
equal proportions  excludes  any  presumption  that  they  intended  to  bar- 
gain for  the  chance  of  survivorship.  They  are,  therefore,  deemed  to 
purchase,  as  in  the  nature  of  partners,  and  to  intend  to  hold  the  estate 
in  proportion  to  the  sums  which  each  has  advanced  (o). 

(h)  Dyer  w.  Dyer,  2  Cox,  92;  Hepworth  v.  Hepworth,  L.  E.  11  Eq.  10.  Mr. 
Atherley,  in  his  Treatise  on  Marriage  Settlements,  ch.  33,  pp.  473  to  484,  and  Mr. 
Sugden,  in  his  Treatise  on  Vendors  and  Purchasers,  ch.  15,  §  1,  2,  pp.  607  to  628  (7th 
edit.),  have  examined  this  whole  subject  with  great  care  and  ability;  and  the  learned 
reader  is  referred  to  these  works  for  a  full  statement  of  the  doctrines  and  the  cases. 

(i)  Crabb  v.  Grabb,  1  Myl.  &  K.  511. 

(k)  Lake  v.  Gibson,  1  Eq.  Cas.  Ab.  890,  pi.  3,  s.c.  nam.  Lake  v.  Craddock,  S 
P.  Wms.  158 ;  Robinson  v.  Preston,  4  Kay,  &  J.  505. 

(/)  Harrison  v.  Barton,  IJ.  &  H.  287;  Mercier  v.  Mercier,  [1903]  2  Ch.  98. 

(m)  Wray  v.  Steele,  2  Ves.  &  B.  388. 

(n)  Rigden  v.  Vallier,  2  Ves.  Sen.  258;  s.c.  3  Atk.  731. 

(o)  Lake  v.  Gibson,  1  Eq.  Cas.  Ab.  390,  pi.  3;  Lake  v.  Craddock,  3  P.  Wms.  158. 


510  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

§  1207.  The  same  rule  is  uniformly  applied  to  joint  purchasers  in 
the  way  of  trade,  and  for  the  purposes  of  partnership,  and  for  other 
commercial  transactions,  by  analogy  to,  and  in  expansion  and  further- 
ance of,  the  great  maxim  of  the  common  law :  ' '  Jus  accrescendi  inter 
mercatores  pro  beneficio  commercii  locum  non  habet"  (p).  In  cases, 
therefore,  where  real  estate  is  purchased  for  partnership  purposes,  and 
on  partnership  account,  it  is  wholly  immaterial  in  the  view  of  a  court 
of  equity,  in  whose  name  or  names  the  purchase  is  made,  and  the  con- 
veyance is  taken;  whether  in  the  name  of  one  partner,  or  of  all  the 
partners,  whether  in  the  name  of  a  stranger  alone,  or  of  a  stranger 
jointly  with  one,  partner.  In  all  these  cases,  let  the  legal  title  be  vested 
in  whom  it  may  (g),  it  is  in  equity  deemed  partnership  property,  not 
subject  to  survivorship;  and  the  partners  are  deemed  the  cestuis  que 
trust  thereof  (r).  A  court  of  law  may,  nay  must,  in  general,  view  it  only 
according  to  the  state  of  the  legal  title.  And  if  the  legal  title  is  vested 
in  one  partner,  or  in  a  stranger,  a  bond  fide  purchaser  of  real  estate  from 
him,  having  no  notice,  either  express  or  constructive,  of  its  being  part- 
nership property,  will  be  entitled  to  hold  it  free  from  any  claim  of  the 
partnership.  But  if  he  has  such  notice,  then  in  equity  he  is  clearly 
bound  by  the  trust;  and  he  takes  it  cum  onere,  exactly  like  every  other 
purchaser  of  a  trust  estate  (s). 

§  12r07a.  But  although,  generally  speaking,  whatever  is  purchased 
with  partnership  property,  to  be  used  for  partnership  purposes,  is  thus 
.treated  as  a  trust  for  the  partnership,  in  whosesoever  name  the  purchase 
may  be  made ;  yet  there  may  be  cases  in  which,  from  the  nature  of  the 
thing  purchased,  the  partner  in  whose  name  it  is  purchased  may,  upon 
a  dissolution  of  the  partnership,  be  entitled  to  hold  it  as  his  own,  so  that 
it  wiU  be  trust  property  sub  modo  only.  Thus,  for  example,  an  office 
may  be  purchased,  or  a  licence  be  obtained  in  the  name  of  a  partner 
out  of  the  partnership  funds  (as,  for  example,  a  stockbroker's  licence, 
or  the  office  of  a  clerk  in  court),  to  be  used  during  the  continuance  of 
the  partnership  for  partnership  purposes,  by  the  person  obtaining  the 
same.  But  it  will  not  follow,  that,  upon  the  dissolution  of  the  partner- 
,ship,  such  partner  is  tohold  the  same,  and  act  as  a  stockbroker,  or  clerk 
in  court,  performing  all  the  duties  alone  for  the  benefit  of  the  other 
partners  (t). 

§  1208.  Another  illustration  of  the  doctrine  of  implied  and  resulting 
trusts  arises  from  the  appointment  of  an  executor  of  a  last  will  and  testa- 
ment. In  cases  of  such  an  appointment  the  executor  was  entitled,  both 
at  law  and  in  equity  (for  in  this  respect  equity  followed  the  law),  to  the 
whole  surplus  of  the  personal  estate,  after  payment  of  all  debts  and 

(p)  Co.  Litt.  182a. 

(g)  See  Maugham  v.  Sharpe,  17  C.  B.  N.  S.  443. 

(r)   Wray  v.   Wray,  [1905]  2  Ch.  359. 

(s)  Ante,  §  675;  post,  §  §  1243,  1253. 

(t)  Clarke  v.  Richards,  1  Y.  &  C.  Ex.  351,  384,  385. 


§    1207—1211.]  IMPLIED     TRUSTS.  511 

charges,  for  his  own  benefit,  unless  it  was  otherwise  disposed  of  by  the 
testator  (u).  Courts  of  equity  did  indeed  lay  hold  of  any  circumstances 
which  might  rebut  the  presumption  of  such  a  gift  to  the  executor;  and 
some  very  nice  and  curious  distinctions  were  taken,  in  order  to  escape 
from  the  operation  of  the  general  rule.  In  general,  it  may  be  stated, 
that,  at  law,  the  appointment  of  an  executor  vested  in  him  all  the  per- 
sonal estate  of  the  testator;  and  the  surplus,  after  the  payment  of  all 
debts  and  legacies,  and  residue  so  far  as  disposed  of,  belonged  to  him. 
But,  in  equity,  if  it  could  be  collected  from  any  circumstance  or  expres- 
sion in  the  will,  that  the  testator  intended  his  executor  to  have  only  the 
office  and  not  the  beneficial  interest,  such  intention  received  effect,  and 
the  executor  was  deemed  a  trustee  for  those  on  whom  the  law  would 
have  east  the  surplus,  in  cases  of  a  complete  intestacy.  But  by  the  11 
Geo.  IV.  &  1  Will.  IV.,  c.  40,  it  is  provided  that  when  any  person  shall 
die,  having  by  will  or  codicil  appointed  any  executor,  such  executor  shall 
be  deemed  by  courts  of  equity  to  be  a  trustee  for  the  person  or  persons 
(if  any)  who  would  be  entitled  to  the  estate  under  the  Statute  of  Dis- 
tributions, in  respect  of  any  residue  not  expressly  disposed  of,  unless 
it  shall  appear  by  the  will  or  any  codicil  thereto,  that  such  executor  was 
intended  to  take  such  residue  beneficially. 

§  1209.  In  like  manner,  at  law,  a  testator,  by  the  appointment  of 
his  debtor  to  be  his  executor,  extinguishes  his  debt,  and  it  cannot  be 
revived ;  although  a  debt  due  by  an  administrator  would  only  be  sus- 
pended. The  reason  of  the  difference  is,  that  the  one  is  the  act  of  the 
law,  and  the  other  is  the  act  of  the  party  (x).  But  in  equity  a  debt  due 
by  an  executor  is  not  extinguished  so  far  as  creditors  are  concerned; 
but  as  between  beneficiajies  and  the  executor  debtor,  a  different  con- 
sideration applies,  for  beneficiaries  are  volunteers,  and  accordingly  slight 
circumstances  are  seized  hold  of  to  infer  that  the  testator  intended  to 
release  the  executor  from  liability  to  account  for  the  debt  (y).  Since 
the  Judicature  Act,  1873,  the  rule  of  equity  will  prevail. 

§  1211.  Upon  grounds  of  an  analogous  nature,  the  general  doctrine 
proceeds,  that,  whatever  acts  are  done  by  trustees  in  regard  to  the  trust 
property,  shall  be  deemed  to  be  done  for  the  benefit  of  the  cestui  que 
trust,  and  not  for  the  benefit  of  the  trustee.  If,  therefore,  the  trustee 
makes  any  contract,  or  does  any  act  in  regard  to  the  trust  estate  for 
his  own  benefit,  he  will,  nevertheless,  be  held  responsible  therefor  to 
the  cestui  que  trust,  as  upon  an  implied  trust.  Thus,  for  example,  if 
a  trustee  should  purchase  a  lien  or  mortgage  on  the  trust  estate  at  a 
discount,  he  would  not  be  allowed  to  avail  himself  of  the  difference ; 
but  the  purchase  would  be  held  a  trust  for  the  benefit  of  the  cestui  que 

(«)  2  Mad.  Pr.  Ch.  83  to  85. 
(x)  Hudson  V.  Hudson,  1  Atk.  461. 

(]/)  Brown  v.  Selwin,  Caa.  t.  Talb.  240;  Bym  v.  Godfrey,  4  Ves.  6;  In  re  Pink, 
Pink  v.  Pink,  [1912]  2  Ch.  528. 


512  EQDITY    JURISPRUDENCE.  [CH.    XXXII. 

trust  (z).  So,  if  a  trustee  should  renew  a  lease  of  the  trust  estate,  he 
would  be  held  bound  to  account  to  the  cestui  que  trust  for  all  advantages 
made  thereby  (a).  And,  if  a  trustee  should  misapply  the  funds  oi  the 
cestui  que  trust,  the  latter  if  adult  would  have  an  election  either  to  take 
the  security,  or  other  property  in  which  the  funds  were  wrongfully 
invested,  or  to  demand  repayment  from  the  trustee  of  the  original  funds ; 
but  if  one  of  the  beneficiaries  is  under  disability  the  trustee  is  only 
accountable  for  the  money  (b). 

§  1211a.  The  same  principle  will  apply  to  persons  standing  in  other 
fiduciary  relations  to  each  other.  Thus,  for  example,  if  an  agent  who  is 
employed  to  purchase  for  another,  purchases  in  his  own  name,  or  for 
his  own  account,  he  will  be  held  to  be  a  trustee  of  the  principal  at  the 
option  of  another  (c).  And  as  a  fiduciary  relationship  is  established  by 
a  contract  for  the  sale  and  purchase  of  real  estate,  a  purchaser  cannot 
acquire  an  alternative  title  to  the  property  so  as  to  defeat  the  rights  of 
the  vendor  under  the  contract,  while  it  subsists  (d).  Sureties  who  pur- 
chase up  the  securities  of  the  principal  in  respect  of  debts  for  which 
they  are  sureties  can  only  charge  the  principal  with  the  price  given  for 
them  (e). 

§  1212.  In  this  and  following  sections  the  author  glanced  cursorily 
at  the  topics  of  conversion,  and  of  reconversion.  It  is  difficult  to  see  how 
by  the  widest  stretch  of  imagination  these  could  be  regarded  as  matters 
of  implied  trust,  depending  as  they  do  on  the  character  of  land  or  money 
being  ' '  imperatively  and  definitively ' '  affixed  to  the  property  irrespec- 
tive of  its  actual  condition  (/).  The  main  question  has  already  been 
discussed  in  its  proper  place  {g). 

§  1215.  In  the  next  place,  we  may  enter  upon  the  consideration  of 
that  class  of  implied  trusts  arising  from  what  are  properly  called  equit- 
able liens ;  by  which  we  are  to  understand  such  liens  as  exist  in  equity, 
and  of  which  courts  of  equity  alone  take  cognizance.  A  lien  (as  has 
been  already  said)  (h)  is  not,  strictly  speaking,  either  a  jus  in  re  or  a 
jus  ad  rem ;  that  is,  it  is  not  a  property  in  the  thing  itself,  nor  does  it 
constitute  a  right  of  action  for  the  thing.  It  more  properly  constitutes 
a  charge  upon  the  thing. 

(z)  Ex  parte  Lacey,  6  Ves.  626 ;  Ex  parte  James,  8  Ves.  337 ;  Lawless  v.  Mans- 
field, 1  Dru.  &  War.  557. 

(o)  Keech  v.  Sandford,  Sel.  Gas.  Ch.  61 ;  James  v.  Dean,  H  Ves.  392 ;  Giddings 
v.  Giddings,  3  Euss.  241. 

(b)  In  re  Salmon,  Priest  v.  Uppleby,  42  Ch.  D.  351;  Power  v.  Banks,  [1901]  2 
Ch.  487 ;  In  re  Jenkins  and  H.  E.  Randall's  Contract,  [1908]  2  Ch.  862. 

(c)  Rochefoucauld  v.  Boustead,  [1897]  1  Ch.  196. 
Id)  Murrell  v.  Ooodyer,  1  De  G.  P.  &  J.  432. 

(e)  Reed  v.  Norris,  2  Myl.  &  Cr.  361. 
(/)  Wheldale  v.  Partridge,  5  Ves.  388,  8  Ves.  227. 
(g)  Ante,  §  §  789  to  793. 

(h)  Ante,  §  506;  Brace  v.  Ducliess  of  Marlborough,  2  P.  Will.  491;  Ex  parte 
Knott,  11  Ves.  617. 


§  1211a — 1216a.]  implied    trusts.  613 

§  1216.  At  law,  a  lien  is  usually  deemed  to  be  a  right  to  possess 
and  retain  a  thing,  until  some  charge  upon  it  is  paid  or  removed  (i). 
There  are  few  liens  which  at  law  exist  in  relation  to  real  estate.  The 
most  striking  of  this  sort  undoubtedly  was,  the  lien  of  a  judgment 
creditor  upon  the  lands  of  his  debtor,  given  by  the  statute  of  West- 
minster II.  But  this  was  not  a  specific  lien  on  any  particular  land,  but 
it  was  a  general  lien  over  all  the  real  estate  of  the  debtor,  to  be  en- 
forced by  an  elegit  or  other  legal  process  upon  such  part  of  the  real  estate 
of  the  debtor  as  the  creditor  might  elect  (k).  The  lien  itself  was  treated 
as  a  consequence  of  the  right  to  take  out  an  elegit ;  and  it  was  applied 
not  only  to  present  real  estate  in  possession,  but  also  to  reversionary 
interests  in  real  estate  (Z).  This  lien  or  charge  upon  the  debtor's  lands 
has  since  been  abolished.  In  respect  to  personal  property,  a  general  lien 
is  in  all  cases  (with  the  exception  only  of  certain  maritime  liens,  such 
as  seamen's  wages,  and  bottomry  bonds)  recognized  at  law  to  exist  only 
when  it  is  connected  with  the  possession  of  the  thing  itself  {m).  Where 
the  possession  is  once  voluntarily  parted  with,  or  is  to  be  temporary, 
the  lien  is,  at  law,  gone  (n.).  Thus,  for  example,  the  lien  on  goods  for 
freight,  the  lien  for  the  repairs  of  domestic  ships,  and  the  lien,  on  goods 
for  a  balance  of  accounts,  are  all  extinguished  by  a  voluntary  surrender 
of  the  thing  to  which  they  are  attached  (o).  Liens  at  law  generally 
arise,  either  by  the  express  agreement  of  the  parties,  or  by  the  usage 
of  trade,  which  amounts  to  an  implied  agreement,  or  by  mere  operation 
at  law  (p).  • 

§  1216a.  In  enforcing  liens  at  law,  courts  of  equity  are,  in  general, 
governed  by  the  same  rules  of  decision  as  courts  of  law,  with  reference 
to  the  nature,  operation,  and  extent  of  such  liens  (g).  But  in  some 
special  cases,  courts  of  equity  will  give  aid  to  the  enforcement  and  satis- 
faction of  liens  in  a  manner  utterly  unknown  at  law.  Thus,  where  there 
is  a  specialty  debt,  binding  the  heirs,  and  the  debtor  dies,  whereby  a 
lien  attaches  upon  all  the  lands  descended  in  the  hands  of  his  heir,  courts 
of  equity  will  interfere  in  aid  of  the  creditor,  and,  in  proper  cases, 
accelerate  the  payment  of  the  debt  by  decreeing  a  sale  and  applying  the 
proceeds  in  paying  creditors  the  amount  of  their  demand  (r).  At  law 
the  creditor  could  only  take  out  execution  against  the  whole  lands,  and 
hold  them,  as  he  would  under  an  elegit,  until  the  debt  was  fully  paid  (s). 

(t)  Ante,  §  506;  Ex  parte  Heywood,  2  Eose,  Cas.  355,  357. 

\k)  Averall  v.  Wade,  LI.  &  G.,  t.  Sugd.  252. 

[1)  Gilbert  on  Executions,  38,  39;  2  Tidd  on  Practice  (9th  edit.),  1034. 

(m)  Jackson  v.  Cummins,  5  M.  &  W.  737;  Dodsley  v.  Varley,  12  Ad.  &  BU.  632; 
Shaw  V.  Neale,  6  H.  L.  C.  581. 

(m)  Hartley  v.  Hitchcock,  1  Stark.  408;  Hatton  v.  Car  Maintenance  Co.,  Ltd., 
[1915]  1  Ch.  621. 

(o)  Ex  parte  Bland,  2  Eose,  91. 

(p)  Post,  §  1240. 

(g)  Gladstone  v.  Birley,  2  Meriv.  403;  Oxenham  v.  Esdaile,  2  Y.  &  Jerv.  493. 

(r)  Ante,  §  628. 

(s)  Bac.  Abr.  Heir  and  Ancestor,  H.  1,  2  Tidd's  Prac.  (9th  edit.),  pp.  936  to  938. 

E.J.  33 


514  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

But  courts  of  equity  will  go  farther,  and  decree  a  sale  of  the  inheritance 
in  order  to  accelerate  the  payment  of  the  debt,  if  it  cannot  otherwise 
be  satisfied  within  a  reasonable  period.  The  same  doctrine  is  applied  to 
reversions  after  an  estate  for  life,  and  even  after  an  estate  tail;  fdr  they 
will  be  decreed  to  be  sold  to  satisfy  a  bond  debt  of  the  ancestor,  which 
binds  the  heir,  in  order  to  accelerate  the  payment  of  the  debt  (<).  And, 
indeed,  courts  of  equity  have,  in  the  case  of  advowsons,  gone  farther; 
and  have  decreed  an  advowson  in  gross  to  be  sold  to  satisfy  a  bond 
creditor;  holding  such  an  advowson  to  be  assets  at  law,  even  if  not 
extendible  on  an  elegit  (u). 

§  1217.  But  there  are  liens  recognized  in  equity,  whose  existence 
is  not  known  or  obligation  enforced  at  law,  and  in  respect  to  which  courts 
of  equity  exercise  a  very  large  and  salutary  jurisdiction  (a;).  In  regard 
to  these  liens,  it  may  be  generally  stated,  that  they  arise  from  construc- 
tive trusts.  They,  are,  therefore,  wholly  independent  of  the  possession 
of  the  thing  to  which  they  are  attached,  as  a  charge  or  incumbrance ; 
and  they  can  be  enforced  only  in  courts  of  equity  {y).  The  usual  course 
of  enforcing  a  lien  in  equity,  if  not  discharged,  is  by  a  sale  of  the  pro- 
perty to  which  it  is  attached  («).  Of  this  we  have  a  strong  illustration 
in  the  well-known  doctrine  of  courts  of  equity,  that  the  vendor  of  land 
has  a  lien  on  the  land  for  the  amount  of  the  purchase-money,  not  only 
against  the  vendee  himself,  and  his  heirs,  and  other  privies  in  estate, 
but  also  against  all  subsequent  purchasers  having  notice  that  the  pur- 
chase-money remains  unpaid  (a.).  Conversely,  the  purchaser  acquires 
a  lien  upon  the  land  in  respect  of  all  payments  made  by  him  under  the 
contract,  and  this  lien  is  available  against  all  persons  claiming  under 
the  vendor  otherwise  than  as  purchaser  for  value  without  notice  of  the 
lien  (b).  And  this  is  rested  upon  a  fiduciary  relationship  established  by 
the  contract  for  sale  of  which  many  examples  can  be  given  (c). 

§  1218.  This  lien  of  the  vendor  of  real  estate  for  the  purchase-money 
is  wholly  independent  of  any  possession  on  his  part;  and  it  attaches  to 
the  estate,  as  a  trust,  equally,  whether  it  be  actually  conveyed,  or  only 
be  contracted  to  be  conveyed.  It  has  often  been  objected,  that  the 
creation  of  such  a  trust  by  courts  of  equity  is  in  contravention  of  the 
policy  of  the  Statute  of  Frauds.  But,  whatever  may  be  the  original 
force  of  such  an  objection,  the  doctrine  is  now  too  firmly  established  to 

(t)  Tyndale  v.  Wane,  Jao.  212. 

(«)  Robinson  v.  Tonge,  3  P.  Will.  308;  1  Bro.  P.  C.  114.  See  Tyndale  v.  Warre, 
Jac.  212,  where  Sir  Thomas  Plumer  held,  that  an  advowson  in  gross  was  not  assets  at 
law,  but  still,  if  not,  it  was  assets  in  equity. 

(a;)  Gladstone  v.  Birley,  2  Meriv.  403. 

(y)  See  ante,  §  1047. 

(z)  Neate  v.  Duke  of  Marlborough,  3  Myl.  &  Or.  407,  415. 

(a)  Machreth  v.  Symmons,  16  Ves.  329. 

(b)  Rose  v.  Watson,  10  H.  L.  C.  672;  Whitehead  &  Co.,  Ltd  v  Watt,  [1902]  1 
Ch.  835. 

(c)  Eq.  Murrell  v.  Goodyer,  1  De  G.  F.  &  J.  432;  Phillips  v.  Silvester,  L.  E.  8 
Ch.  173;  Clarke  v.  Ramuz,  [1891]  2  Q.  B.  456. 


§    1217—1220.]  IMPLIED     TRUSTS.  515 

be  shaken  by  any  mere  theoretical  doubts  (d).  Courts  of  equity  have 
proceeded  upon  the  ground,  that  the  trust,  being  raised  by  implication, 
is  not  within  the  purview  of  that  statute;  but  is  excepted  from  it.  It 
is  not,  perhaps,  so  strong  a  case  as  that  of  a  mortgage  implied  by  a 
deposit  of  the  title-deeds  of  real  estate,  which  seems  directly  against 
the  policy  of  the  statute,  but  which,  nevertheless,  has  been  unhesitat- 
ingly sustained  (e). 

§  1219.  The  principle  upon  which  courts  of  equity  have  proceeded 
in  establishing  this  lien,  in  the  nature  of  a  trust,  is,  that  a  person  who 
has  gotten  the  estate  of  another,  ought  not,  in  conscience,  as  between 
them,  to  be  allowed  to  keep  it,  and  not  to  pay  the  full  consideration 
money.  A  third  person,  having  full  knowledge  that  the  estate  had  been 
so  obtained,  ought  not  to  be  permitted  to  keep  it  without  making  such 
payment;  for  it  attaches  to  him,  also,  as  a  matter  of  conscience  and 
duty.  It  would  otherwise  happen  that  the  vendee  might  put  another 
person  into  a  position  better  than  his  own,  with  full  notice  of  all  the 
facts  (/). 

§  1220.  It  has  been  sometimes  suggested,  that  the  origin  of  this 
lien  of  the  vendor  might  be  attributed  to  the  tacit  consent  or  implied 
agreement  of  the  parties.  But,  although  in  some  cases  it  may  be  per- 
fectly reasonable  to  presume  such  a  consent  or  agreement,  the  lien  is 
not,  strictly  speaking,  attributable  to  it,  but  stands  independently  of 
any  such  supposed  agreement  (g).  On  other  occasions  the  lien  has  been 
treated  as  a  natural  equity,  having  its  foundation  in  the  earliest  prin- 
ciples of  courts  of  equity  (h).  Thus,  it  has  been  broadly  contended, 
that,  according  to  the  law  of  all  nations,  the  absolute  dominion  over 
property  sold  is  not  acquired  by  the  purchaser  until  he  has  paid  the  price, 
or  has  otherwise  satisfied  it,  unless  the  vendor  has  agreed  to  trust  to  the 
personal  credit  of  the  buyer  (i).  For  a  thing  may  well  be  deemed  to  be 
unconscientiously  obtained,  when  the  consideration  is  not  paid  (fc). 
Upon  this  ground  the  Roman  law  declared  the  lien  to  be  founded  in 
natural  justice.  "  Tamen  rectfe  dieitur,  et  jure  gentium,  id  est,  jure 
naturali,  id  effici  "  (l).     And,  therefore,  when   courts  of   equity  estab- 

(d)  Mackfisth  v.  Symmons,  15  Ves.  339.  (e)  Ante,  §  1020. 

(/)  See  Mackreth  v.  Symmons,  15  Ves.  340,  347,  349. 

(g)  Nairn  v.  Prowse,  6  Ves.  752. 

(h)  Chapman  v.  Tanner,  1  Vern.  267,  268;  Blackbume  v.  Gregson,  1  Bro.  C.  C. 
424. 

(i)  By  Mr.  Scott  and  Mr.  Mitford,  in  argument,  in  Blackbume  v.  Gregson,  1 
Cox  94. 

(fc)  Hughes  v.  Kearney,  X  Sch.  &  Lefr.  135.  It  was  formerly  doubted,  in  conse- 
quence of  an  expression  which  tell  from  Lord  Hardwicke,  in  Pollexfen  v.  Moore,  3 
Atk.  278,  whether  this  lien  of  the  vendor  could  exist  in  favour  of  a  third  person;  as, 
for  example,  if  the  vendor,  having  such  a  lien,  should  exhaust  the  personal  estate  of 
the  deceased  purchaser,  whether  legatees  should  have  a  right  to  stand  in  his  place 
against  the  real  estate  in  the  hands  of  the  heir,  as  upon  the  marshalling  of  the  assets. 
That  doubt  is  now  removed,  and  the  affirmative  established  in  Selby  v.  Selby,  4  Russ. 
336.     See  Locke  King's  Act,  1877  (40  &  41  Vict.  c.  84). 

(I)  Inst.  Lib.  2,  tit.  1,  §  41. 


516  EQUITY    JURISPEUDEKCE.  [CH.    XXXII. 

lished-the  lien  as  a  matter  of  doctrine,  it  had  the  effect  of  a  contract,  and 
the  lien  was  held  to  prevail,  although,  perhaps,  no  actual  contract  had 
taken  place  (m). 

§  1221.  The  true  origin  of  the  doctrine  may,  with  high  probability, 
be  ascribed  to  the  Eoman  law,  from  which  it  was  imported  into  the 
equity  jurisprudence  of  England  (n).  By  the  Roman  law,  the  vendor  of 
property  sold  had  a  privilege,  or  right  of  priority  of  payment,  in  the 
nature  of  a  lien  on  the  property,  for  the  price  for  which  it  was  sold,  not 
only  against  the  vendee  and  his  representatives,  but  against  his  creditors, 
and  also  against  subsequent  purchasers  from  him.  For  it  was  a  rule  of 
that  law,  that,  although  the  sale  passed  the  title  and  dominion  in  the 
thing  sold ;  yet  it  also  implied  a  condition,  that  the  vendee  should  not 
be  of  the  thing  so  sold,  unless  he  had  paid  the  price,  or  had  otherwise 
satisfied  the  vendor  in  respect  thereof,  or  a  personal  credit  had  been  given 
to  him  without  satisfaction.  "  Quod  vendidi  "  (said  the  Digest),  "  non 
aliter  fit  acoipientis  quam  si  aut  pretium  nobis  solutum  sit  aut  satis  eo 
nomine  factum ;  vel  etiam  fidem  habuerimus  emptori  sine  ulla  satisfac- 
tione  (o).  Ut  res  emptoris  fiat,  nihil  interest,  utrum  solutum  sit  pre- 
tium, an  eo  nomine  fidejussor  datus  sit  "  (p).  The  doctrine  was  still 
more  explicitly  laid  down  in  the  Institutes :  ' '  Venditse  vero  res,  et 
traditsB,  non  aliter  emptori  acquiruntiu:,  quam  si  is  venditori  pretium 
solvent,  vel  alio  modo  ei  satisf ecerit ;  veluti  expromissore  aut  pignore 
dato.  Sed,  si  is,  qui  vendidit,  fidem  emptoris  sequutus  fuerit,  dicendum 
est,  statim  rem  emptoris  fieri  "  (q).  The  rule  was  equally  applied  to  the 
sale  of  movable  and  of  immovable  property;  and  equally  applied, 
whether  there  had  been  a  delivery  of  possession  to  the  vendee  or  not. 
If  there  was  no  such  delivery  of  possession,  then  the  vendor  might  retain 
the  property  as  a  pledge,  until  the  price  was  paid.  If  there  was  such  a 
delivery  of  possession,  then  the  vendor  might  follow  the  property  into 
the  hands  of  any  person,  to  whom  it  had  been  subsequently  passed,  and 
reclaim  it  or  the  price  (r).  "  Venditor  enim,  quasi  pignus,  retinere 
potest  eam  rem,  quam  vendidit "  (s).  And  a  part  payment  of  the  pric& 
did  not  exonerate  the  property  from  the  privilege  or  hen  for  the  residue. 
"  Hsereditatis  venditse  pretium  pro  parte  accepit  "  (said  the  Digest, 
quoting  Sesevola),  "  reliquum  emptore  non  solvente;  qusesitum  est,  an 
corpora  haereditaria  pignoris  nomine  teneantur?  Respondi;  nihil 
proponi,  cur  non  teneantur  "  (f). 

(m)  Mackreth  v.  Symmons,  15  Ves.  329,  337. 

(n)  Mackreth  v.  Symmons,  15  Ves.  329,  344.  (o)  Dig.  Lib.  18,  tit.  1,  f.  19. 

(p)  Ibid.  f.  53.  (q)  Inst.  Lib.  2,  tit.  1,  §  41. 

(r)  Ibid.  The  same  rule  exists  in  the  French  law  in  regard  to  immovables.  But 
in  regard  to  movables,  when  delivered  to  the  vendee,  there  is  no  sequel  (as  it  is  phrased 
in  the  French  law)  by  way  of  privilege  or  lien  against  the  property,  except  while  it 
remains  in  the  hands  of  the  purchaser.  If  he  has  sold  it,  the  right  of  privilege  or  lien, 
for  the  price  is  gone.     1  Domat,  B.  3,  tit.  1,  §  5,  art.  4,  and  note. 

(s)  Id.  Dig.  Lib.  19,  tit.  1,  f.  13,  §  8. 

(t)  Dig.  Lib.  18,  tit.  4,  f.  22 ;  Pothier,  Pand.  Lib.  19,  tit.  1,  n.  5. 


§    1221—1223.]  IMPLIED    TRUSTS.  517 

§  1222.  This  close  analogy,  if  not  this  absolute  identity,  of  the 
English  doctrine  of  the  lien  of  the  vendor  with  that  of  the  Eomam  law  of 
privilege  on  the  same  subject,  seems  to  demonstrate  a  common  origin ; 
although  in  England  the  lien  is  confined  to  cases  of  the  sale  of  immov- 
ables, and  it  does  not  extend  to  movables,  apart  from  the  right  to  stop 
while  the  goods  are  in  transitu,  where  there  has  been  a  transfer  of  pos- 
session (m).  As  regards  equitable  interests  in  settled  stocks  and  funds,  a 
vendor's  lien  may  exist  (a;).  But  in  this  case  the  matter  is  of  slight 
importance  in  practice  owing  to  the  determination  of  rights  by  priority 
by  notice  (y).  There  are,  however,  some  exceptions  from  the  doctrine 
in  each  law,  founded  upon  the  same  general  principle,  but  admitting  of 
some  diversity  in  respect  to  its  practical  application. 

§  1223.  We  have  seen  that  the  lien  by  the  Eoman  law  ceased 
(1)  where  the  price  was  actually  paid ;  (2)  where  anything  was  taken  in 
Satisfaction  of  the  price,  although  payment  had  not  been  positively 
made ;  (3)  where  a  personal  credit  was  given  to  the  vendee,  excluding 
any  notion  of  a  lien ;  "  Aut  pretium  nobis  solutum  sit ' '  (said  the  Digest) ; 
aut  satis  eo  nomine  factum ;  vel  etiam  fidem  habuerimus  emptori  sine 
uUa  satisfactione  "  (z).  Pothier  has  deduced  the  conclusion,  that,  in 
the  civU  law,  the  question,  whether  a  personal  credit  was  given  to  the 
vendee  or  not,  was  to  be  judged  of  by  all  the  circumstances  of  the  case. 
Whenever  it  was  doubtful  whether  such  credit  was  given  or  not,  there 
it  was  not  to  be  presumed,  unless  made  certain  by  the  vendee  {a).  In 
every  other  case,  either  a  payment  or  a  satisfaction  of  the  price  was 
necessary  to  discharge  the  property.  The  giving  of  a  pledge  or  security 
for  the  price  was  deemed  equivalent  to  payment.     ' '  Qualibet  ratione,  si 


(«)  Sale  of  Goods  Act,  1893  (56  &  57  Vict.  c.  71),  sect.  39,  sub-s.  1  (a),  sect.  43. 
See  McGruther  v.  Pitcher,  [1904]  2  Ch.  306. 

(a)  In  re  Stueley,  SUtcley  v.  Kekewich,  [1906]  1  Ch.  67. 

iy)  Davies  v.  Thomas,  [1900]  2  Ch.  462. 

(z)  Dig.  Lib.  18,  tit.  1,  f.  19;  Inst.  Lib.  2,  tit.  1,  §  41.  Vinnius  distinguishes 
between  "^  payment  and  a  satisfaction.  "  Satisfaciendi  verbum  generalius  est,  quam 
solvendi.  Qui  solvit,  utique  et  satisfacit;  at  non  omnis  satisfactio  solutio  est.  Satis- 
facit,  et  qui  non  liberatur;  veluti,  si  quis  fidejussorem  vel  pignora  det;  solutione  vero 
obligatio  toilitur."  Vinnius  also  says,  that  a  personal  credit,  given  to  the  vendor,  with- 
out satisfaction,  is  a  waiver  of  the  lien.  For,  commenting  on  the  words  of  the  Insti- 
tute, Sed  si  is,  qui  vendidit,  fidem  emptoris  sequutus  fuerit,  he  says  :  "  Id  est,  fidem 
emptori  de  pretio  habuerit  sine  uUa  satisfactione."  What  will  amount  to  such  per- 
sonal credit,  he  adds,  depends  on  circumstances,  but  an  agreement  for  postponement 
of  payment  to  a  future  day  would  be  such  a  personal  credit  and  would  discharge  the 
lien.  "  Quod  ex  circumstantiis  aestimandum;  veluti,  si,  dies,  solutioni  dicta  sit."  And 
for  this  he  cites  the  Code.  (Cod.  Lib.  4,  tit.  54,  1.  3.)  He  then  proceeds  :  "  Aut  ei, 
<ium  emptor,  pecuniam  ad  manum  non  haberit,  venditor  dixerit;  I,  licet;  nunc  non 
require;  postea  dabis."    Vinn.  ad.  Inst.  Lib.  2,  tit.  1,  §  41,  Comm.  (2). 

(o)  Pothier,  Pand.  Lib.  41,  tit.  1,  note  60.  In  this  position  Vinnius  agrees  with 
Pothier,  contrary  to  what  is  held  by  some  other  jurists.  "  In  dubio,  qui  rem  emptori 
tradit  non  videtur  sequi  fidem  emptoris,  nisi  emptor  contrarium  doceat."  Vinn.  ad 
Inst.  Lib.  2,  tit  1,  §  41;  Comm.  (3).  . 


518  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

venditori  de  pretio  satisf actum  est,  veluti,  expromissore  aut  pignore 
dato,  proinde  sit,  ac  si  pretium  solutum  esset  "  (b). 

§  1224.  Now,  the  same  principle  is  applied  in  English  jurisprudence. 
Generally  speaking,  the  lien  of  the  vendor  exists;  and  the  burden  of 
proof  is  on  the  purchaser  to  establish,  that,  in  the  particular  case,  it  has 
been  intentionally  displaced,  or  waived  by  the  consent  of  the  parties  (c). 
If,  under  all  the  circumstances,  it  remains  in  doubt,  then  the  lien 
attaches.  The  difficulty  lies  in  determining  what  circumstances  are  to 
be  deemed  sufficient  to  repel  or  displace  the  lien,  or  to  amount  to  a 
waiver  of  it.  And,  upon  the  authorities,  this  is  left  in  such  a  state  of 
embarrassment,  that  a  learned  judge  has  not  hesitated  to  say,  that  it 
would  have  been  better  at  once  to  have  held,  that  the  lien  should  exist 
in  no  case,  and  that  the  vendor  should  suffer  the  consequences  of  his 
want  of  caution ;  or  to  have  laid  down  the  rule  the  other  way  so  dis- 
tinctly, that  a  purchaser  might  be  able  to  know,  without  the  judgment 
of  a  court,  in  what  cases  it  would,  and  in  what  it  would  not  exist  (rf). 
At  present,  that  certainty  cannot  be  generally  affirmed. 

§  1225.  In  the  first  place,  it  seems,  that,  if,  upon  the  face  of  the 
conveyance,  the  consideration  is  expressed  to  be  paid,  and  even  if  a 
receipt  therefore  is  indorsed  upon  the  back  of  it,  and  yet,  in  point  of  fact, 
the  purchase-money  has  not  been  paid,  the  lien  is  not  gone ;  but  it 
attaches  against  the  vendee  and  all  persons  claiming  as  volunteers,  or 
with  notice  under  him  (e). 

§  1226.  The  taking  of  a  security  for  the  payment  of  the  purchase- 
money  is  not,  in  itself,  as  it  was  in  the  Eoman  law,  a  positive  waiver 
or  extinguishment,  of  the  lien  (/).  It  is,  perhaps,  to  be  regretted,  that 
it  has  not  been  so  held ;  as  when  a  rule  so  plain  is  once  communicated, 
if  the  vendor  should  not  take  an  adequate  security,  he  would  lose  his 
lien  by  his  own  fault.  But  the  taJiing  a  security  has  been  deemed, 
at  most,  as  no  more  than  a  presumption,  under  some  circumstances, 
of  an  intentional  waiver  of  the  lien ;  and  not  as  conclusive  of  the 
waiver.  And  if  a  security  is  taken  for  the  money,  the  burden  of  the 
proof  has  been  adjudged  to  lie  on  the  vendee  to  show,  that  the  vendor 
agreed  to  rest  on  that  security,  and  to  discharge  the  land  (g).  Nay, 
even  the  taking  of  a  distinct  and  independent  security,  as,  for  instance, 
of  a  mortgage  on  another  estate,  or  of  a  pledge  of  other  property,  has 

(b)  Dig.  Lib.  18,  tit.  1,  f.  53;  Pothier,  Pand.  Lib.  41,  tit.  1,  n.  60;  Inat.  Lib.  2, 
tit.  1,  §  41. 

(c)  Nairn  v.  Prowse,  6  Ves.  752;  Hughes  v.  Kearney,  1  Sch.  &  L.  132;  Mackreth 
V.  Symmons,  15  Ves.  329. 

(d)  Lord  Eldon  in  Mackreth  v.  Symmons,  15  Ves.  329,  340. 

(e)  Mackreth  v.  Symmons,  15  Ves.  329;  Worthington  v.  Morgan,  16  Sim.  547; 
Frail  v   Ellis,  16  Beav.  350. 

(/)  Mackreth  v.  Symmons,  15  Ves.  329. 

ig)  Hughes  v.  Kearney,  1  Sch.  &  L.  132;  Saunders  v.  Leslie,  1  Ball  &  B.  514; 
Frail  v.  Ellis,  16  Beav.  350.  As  examples  of  cases  in  which  it  has  been  held  that  the 
lien  was  waived,  see  Good  v.  Pollard,  9  Price  544,  10  Price  109;  Capper  v.  Spottis- 
woode,  Taml.  4. 


§    1224—1228.]  IMPLIED     TRUSTS.  619 

been  deemed  not  to  be  conclusive  evidence  that  the  lien  is  waived  Qi). 
The  taking  of  bills  of  exchange  drawn  on  and  accepted  by  a  third 
person,  or  by  the  purchaser  and  a  third  person,  has  also  been  deemed 
not  to  be  a  waiver  of  the  lien,  but  to  be  merely  a  mode  of  payment  (i). 
And  it  has  been  lain  down  as  clear  doctrine,  that,  in  general,  where  a 
bill,  note,  or  bond  is  given  for  the  whole  or  a  part  of  the  purchase- 
money,  the  vendor  does  not  lose  his  lien  for  so  much  of  the  purchase- 
money  as  remains  unpaid,  even  though  it  is  secured  to  be  paid  at  a 
future  day,  or  not  until  after  the  death  of  the  purchaser  (fe).  And  if 
the  purchase-money  is  by  agreement  to  be  paid  in  instalments,  the 
vendor  will  be  at  liberty  to  apply  to  tihe  court  for  a  declaration  that  his 
lien  extends  to  future  instalments  when  they  become  due  (l).  But 
the  right  to  hen  may  be  lost  by  the  contract  between  vendor  and 
purchaser  being  of  such  a  nature  as  to  exclude  it  (w). 

§  1227.  The  lien  of  the  vendor  is  not  confined  to  himself  alone ; 
but,  in  case  of  his  death,  it  extends  to  his  personal  representatives  (w.). 
It  may  also  be  enforced  in  favour  of  a  third  person,  notwithstanding 
a  decision  of  Lord  King  and  the  doubts  formerly  expressed  by  Lord 
Hardwioke,  even  in  favour  of  legatees  (who  are  volunteers)  under  the 
practice  of  marshalling  (o).  And  Locke  King's  Act,  1877,  now 
provides  that  any  lien  for  unpaid  purchase-money  shall  be  satisfied 
by  the  person  to  whom  the  estate  descended  or  was  devised,  unless 
the  vendor  shall  in  the  manner  prescribed  by  the  Act  have  signified 
a  contrary  intention. 

§  1228.  We  have  already  had  occasion  to  state,  that  the  lien  of 
the  vendor  exists  against  the  vendee  and  against  volunteers,  and 
purchasers  under  him  with  notice,  having  an  equitable  title  only  (p). 
But  it  does  not  exist  against  purchasers  under  a  conveyance  of  the 
legal  estate  made  bond  fide,  for  a  valuable  consideration  without  notice, 
if  they  have  paid  the  purchase-money  (g).  The  lien  will  also  prevail 
against  parties  having  no  better  title  than  the  purchaser,  as  trustees 
in  bankruptcy  (r),  or  judgment  creditors  (s).  So,  it  will  prevail  against 
a  judgment  creditor  of  the  vendee  before  an  actual  conveyance  of  the 

(;i)  Frail  v.  Ellis,  16  Beav.  350. 

(i)  Grant  v.  Mills,  2  Ves.  &  B.  306;  Ex  parte  Peake,  1  Mad.  346. 

(k)   Winter  v.  Lord  Anson,  3  Euss.  488;  Collins  v.  Collins,  31  Beav.  346. 

(l)  Matthew  v.  Bowler,  6  Hare  110;  Nives  v.  Nives,  15  Ch.  D.  649. 

(to)  Good  v.  Pollard,  9  Price,  544,  10  Price,  109;  Capper  v.  Spottiswoode ,  Taml. 
21 ;  In  re  Brentwood  Brick  and  Coal  Company,  4  Ch.  T).  562. 

(n)  Ante,  §  788  to  791,  1216,  1217. 

(o)  Selby  v.  Selby,  4  Euss.  336;  Sproule  v.  Prior,  8  Sim.  189;  Lord  Lilford  v. 
Powys  Keek,  L.  E.  1  Eq.  347. 

(p)  Worthington  v.  Morgan,  16  Sim.  547;  Frail  v.  Ellis,  16  Beav.  350. 

(g)  Ante,  §  788,  789;  2  Mad.  Ch.  Pr.  105,  106;  Cator  v.  Bolingbroke,  1  Bro.  Ch. 
C.  302;  Mackreth  v.  Symmons,  15  Ves.  329;  Rice  v.  Rice,  2  Drew.  73. 

(r)  Blackburne  v.  Gregson,  1  Bro.  C.  C.  420,  by  Belt;  Sugden,  Vendors  and  Pur- 
chasers, ch.  12,  §  3,  p.  557  (7th  edit.);  Grant  v.  Mills,  2  Ves.  &  B.  306;  Ex  parte 
Peake,  1  Mad.  356. 

(s)  Fawell  v.  Heelis,  Ambler  726. 


520  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

estate  has  been  made  to  him  (t);  and  as  it  should  seem,  also  against 
such  a  judgment  creditor  after  tihe  conveyance;  for  each  party,  as  a 
creditor,  would  have  a  lien  on  the  estate  sold,  with  an  equal  equity, 
and,  in  that  case,  the  maxim  applies,  "  Qui  prior  est  in  tempore, 
potior  est  in  jure." 

§  1229.  But  there  is  a  clear  distinction  between  the  case  of  such 
a  general  assignment  to  assignees  for  the  benefit  of  creditors  generally 
aJid  a  particular  assignment  to  specified  creditors  for  their  particular 
security  or  satisfaction.  The  former  are  deemed  to  take  as  mere 
volunteers,  and  not  as  purchasers  for  a  valuable  consideration,  strictly 
so  called  (m).  The  latter,  if  a  conveyance  of  the  property  has  been 
actually  made,  and  they  have  no  notice  of  the  purchase-money  being 
unpaid  to  the  vendor,  are  deemed  entitled  to  the  same  equities  as  any 
other  bond  fide  particular  purchasers  (x). 

§  1230.  Liens  of  an  analogous  nature  may  be  created  by  a  deposit 
of  title-deeds,  as  a  security  for  advance  of  money,  thus  constituting  an 
equitable  mortgage  on  the  estate  included  in  the  title-deeds.  But  this 
subject  has  been  already  considered  in  a  previous  part  of  these  Commen- 
taries (y). 

§  1231.  So,  liens  may  be  created  on  the  purchase-money  due  on 
the  sale  of  an  estate,  in  favour  of  a  vendee,  if  it  is  agreed  that,  the 
money  shall  be  deposited  in  the  hands  of  a  third  person,  to  be  applied 
in  discharge  of  prior  incumbrances,  to  the  extent  of  such  in- 
cumbrances (z).  .Indeed,  there  is  generally  no  difficulty  in  equity  in 
establishing  a  lien,  not  only  on  real  estate  but  on  personal  property, 
or  on  money  in  the  hands  of  a  third  person,  wherever  that  is  a  matter 
of  agreement,  at  least  against  the  party  himself,  and  third  persons, 
when  are  volunteers,  or  have  notice.  For  it  is  a  general  principle  in 
equity,  that,  as  against  the  party  himself,  and  any  claiming  under 
him,  voluntarily,  or  with  notice,  such  an  agreement  raises  a  trust  (a). 
Thus,  for  example,  if  a  tenant  for  life  of  real  estate,  should,  by  a 
covenant,  agree  to  set  apart,  and  pay  the  whole,  or  a  portion  of  the 
annual  profits  of  that  estate  to  trustees  for  certain  objects,  it  would 
create  a  lien,  in  the  nature  of  a  trust,  on  those  profits  against  him, 
and  all  persons,  claiming  as  volunteers,  or  with  notice  under  him  (b). 
"When  the  author  wrote  there  was  authority  for  the  proposition  that 
a  general  lien  could  be  created  over  realty  by  a  covenant  to  settle 

(t)  Finch  V.  Earl  of  WincheU&a,  1  P.  Will.  278. 

(u)  Brown  v.  Heathcote,  1  Atk.  159 ;  Worrall  v.  Marlar,  cited  in  Mr.  Cox's  notes 
to  1  P.  Will.  459;  Com.  Dig.  Bankrupt,  D.  19;  Scott  v.  Surman,  Willes  402,  and  the 
Register's  note;  ante,  §  1038,  1411. 

(x)  Mitford  v.  Mitford,  9  Ves.  100. 

(y)  Ante,  li  1020. 

(z)  Farr  v.  Middleton,  Prec.  Co.  174. 

(a)  Collyer  v.  Fallon,,  1  Turn.  &  Russ.  459;  Legard  v.  Hodges.  1  Ves.  Jun.  478; 
ante,  §  1039  to  1058 ;  Dodsley  v.  Varley,  12  Adolph.  &  Ell.  632. 

(b)  Legard  v.  Hodges,  1  Ves.  Jun.  478. 


§    1229 — 1234.]  IMPLIED     TRUSTS.  521 

lands  of  a  certain  value  or  to  secure  an  annuity  by  a  charge  upon 
lands  or  by  investment  in  the  funds  or  by  the  best  means  in  the 
covenantor's  power,  but  it  is  now  settled  that  no  charge  or  lien  can 
b©  established  unless  the  property  vi^hich  is  to  form  the  security  is 
identified,  or  the  option  of  choice  of  security  taken  from  the 
covenantor  (c). 

§  12316.  The  owner  of  land  taken  by  a  railway  for  the  purpose  of 
its  construction  still  retains  a  lien  upon  the  land  for  the  unpaid  price, 
e\en  after  the  railway  has  gone  into  operation,  to  be  enforced  by  a 
sale  aJid  the  appointment  of  a  receiver,  the  right  of  the  purchaser 
being  paramount  to  that  of  the  public  (d). 

§  1232.  Upon  similar  principles,  where  a  vendee  has  sold  the 
estate  to  a  bona  fide  purchaser  without  notice,  if  the  purchase-money 
has  not  been  paid,  the  original  vendor  may  proceed  against  the  estate 
for  his  lien,  or  against  the  purchase-money  in  the  hands  of  such  pur- 
chaser for  satisfaction ;  for  in  such  a  case  the  latter,  not  having  paid 
his  money,  takes  the  estate  aum  onere,  at  least  to  the  extent  of  the 
unpaid  purchase-money.  And  this  proceeds  upon  a  general  ground, 
that,  where  trust-money  can  be  traced,  it  shall  be  applied  to  the 
purposes  of  the  trust  (e). 

§  1233.  But,  although  a  lien  will  be  created  in  favour  of  a  vendor 
for  the  purchase-money  on  the  sale  of  an  estate ;  yet,  if  the  considera- 
tion of  the  conveyance  is  a  covenant  to  pay  an  annuity  to  the  vendor, 
and  another  covenant  to  pay  a  part  of  the  money  to  third  persons,  it 
seems  that  the  latter,  not  being  parties  to  the  conveyance,  will  not, 
generally,  have  any  lien  thereon,  for  the  payment  of  such  money ;  for 
they  stand  in  no  privity  to  establish  a  lien,  at  least  unless  the  original 
agreement  import  an  intention  to  create  such  a  lien  (/). 

§  1234.  Another  species  of  lien  is  that  which  results  to  one  joint 
owner  of  any  real  estate,  or  other  joint  property,  from  repairs  and 
improvements  made  upon  such  property  for  the  joint  benefit,  and  for 
disbursements  touching  the  same.  This  lien,  as  we  shall  presently 
see,  sometimes  arises  from  a  contract,  express  or  implied,  between 
the  parties,  and  sometimes  it  is  -created  by  courts  of  equity,  upon 
mere  principles  of  general  justice,  especially  where  any  relief  is  sought 
by  the  party,  who  ought  to  pay  his  proportion  of  the  money  expended 
in  such  repairs  and  improvements ;  for  in  such  cases,  the  maxim  well 
applies,  "  Nemo  debet  locupletari  ex  alterius  incommodo  "  {g). 

(c)  Countess  of  Mornington  v.  Keane,  2  De.  G.  &  J.  292. 

(d)  Walker  v.  Ware,  Hadham,  and  Buntingford  Ry.,  L.  E.  1  Eq.  195;  Munns  v. 
Isle  of  Wight  iJt/.,  L.  B.  5  Ch.  414. 

(e)  See  bench  v.  Lench,  10  Ves.  511;  Ex  parte  Morgan,  12  Ves.  6;  Poole  v. 
Adams,  33  L.  J.  Ch.  639;  post,  §  §  1265  to  1262. 

(/)  Clark  v.  Royle,  3  Sim.  499;  Foster  v.  Blackstone,  1  Myl.  &  K.  297;  Colyear 
v    Countess  of  Mulgrave,  2  Keen  81,  98 ;  ante,  §  1227. 

(g)  Jenkins's  Cent.  4;  post,  §  1237;  Dig.  Lib.  50,  tit.  17,  f.  206. 


522  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

§  1235.  At  the  common  law,  if  there  are  two  tenants  in  common, 
or  joint  tenants  of  a  house  or  mill,  and  it  should  fall  into  decay,  and 
the  one  is  willing  to  repair  and  the  other  is  not;  he  that  is  willing  to 
repair  shall  have  a  writ  de  reparatione  faciendd;  for  owners  are  bound, 
pro  bono  publico,  to  maintain  houses  and  mills,  which  are  for  the 
habitation  and  use  of  man  (h).  It  is  not,  perhaps,  quite  certain,  from 
the  manner  in  which  this  doctrine  is  laid  down,  whether  the  writ 
applied  merely  to  repairs  on  other  things,  constituting  real  estate,  or 
appurtenant  thereto.  But  it  seems  clear,  that  the  word  "  repairs  "  is 
used  in  a  sense  different  to  what  it  bears  at  the  present  day,  and  that 
it  extends  to  an  expenditure  necessary  to  prevent  the  house  from  going 
to  ruin  (i),  or  permanent  improvements  (k). 

§  1236.  But  the  doctrine  of  contribution  in  equity  is  larger  than  it 
is  at  law.  Thus,  for  example,  it  has  been  held,  that  if  two  or  more 
persons  make  a  joint  purchase,  and  afterwards  one  of  them  lays  out 
a  considerable  sum  of  money  in  repairs  or  improvements,  and  dies, 
this  will  be  a  lien  on  the  land,  and  a  trust  for  the  representatives  of 
him  who  advanced  it  {I).  This  depends  upon  the  analogy  of  a  partner- 
ship (m). 

§  1287.  The  whole  subject  was  considered  and  the  authorities 
reviewed  in  recent  times,  and  the  principle  established  by  the  eases 
negatives  a  general  right  of  lien  from  the  mere  fact  of  a  right  of 
contribution  (n).  There  is  no  principle  analogous  to  a  claim  for  mari- 
time salvage  at  the  common  law  or  in  equity  (o).  A  trustee  or  person 
in  a  fiduciary  position  is  entitled  to  an  indemnity  for  an  expenditure 
in  preserving  the  trust  property,  and  may  transfer  this  right  to  a 
person  who  advances  the  money  at  his  request,  but  short  of  this  there 
is  no  lien  (p).  The  only  apparent  exception  is  the  right  of  a  defendant 
in  a  partition  action  to  be  recouped  out  of  the  property  the  value 
(estimated  at  the  time  of  action,  and  not  exceeding  the  sum  actually 
expended)  of  permanent  improvements.  He  who  seeks  equity  must  do 
equity  (g).  "When  a  fiduciary  relation  is  established,  a  pari;y  in  the 
position  of  a  trustee  may  claim  a  lien  for  his  expenditure  or  at  least  a 
part  of  it.  Thus,  where  a  tenant  for  hfe  under  a  will,  has  gone  on  to 
finish  improvements,  permanently  beneficial  to  an  estate,  which  were 
begun  by  the  testator,  courts  of  equity  have  deemed  the  expenditure 

()i)  Co.  Litt.  200  b ;  Pitzherbert,  N.  B.  p.  127. 

ft)  Kay  V.  Johnston,  21  Beav.  536;  Leigii  v.  Dickeson,  15  Q.  B.  D.  60. 

(k)  In  re  Jones,  Farrington  v.  Forrester,  [1893]  2  Ch.  461. 

(l)  Lake  v.  Cradock,  1  Bq.  Abr.  291 ;  s.c.  3  P.  Will.  158. 

(m,i  Sec  Kay  v.  Johnston,  21  Beav.  536;  In  re  Leslie,  Leslie  v.  French,  23  Cb. 
D.  552. 

(n)  In  re  Leslie,  Leslie  v.  French,  23  Ch.  D.  552. 

(o)  Nicholson  v.  Chapman,  2  H.  Bl.  254  ;  In  re  Leslie,  Leslie  v.  French,  23  Ch.  D. 
552;  Falcke  v.  Scottish  Imperial  Insurance  Society^  34  Ch.  D.  234. 

(p)  In  re  Leslie,  Leslie  v.  French,  23  Ch.  D.  552. 

(g)  Swan  v.  Swan,  8  Price,  618;  In  re  Jones,  Farrington  v.  Forrester,  [1893]  2 
Ch.  461. 


§  1235—1242.]  IMPLIED  TRUSTS.  523 

(so  far  as  they  were  not  attributable  to  ordinary  repairs)  a  charge,  for 
which  the  tenant  is  entitled  to  a  hen  (r). 

§  1239.  The  civil  law  seems  to  have  proceeded  upon  a  far  brosider 
principle  of  natural  justice.  For,  by  that  law,  any  bond  fide  possessor, 
as,  for  instance,  a  creditor,  who  had  laid  out  money  in  preserving, 
repairing,  or  substantially  improving  an  estate,  was  allowed  a  privilege 
or  lien  for  such  meliorations.  "  Creditor  qui  ob  restitutionem 
sedificiorum  crediderit,  in  pecuniam,  quam  crediderit,  privilegium 
exigendi  habebit  (s).  Pignus  insulse,  creditor!  datum,  qui  pecuniam 
ob  restitutionem  aedificii  exstruendi  mutuam  dedit,  ad  eum  quoque 
pertinebit,  qui  redemptori,  domino  mandante,  nummos  minis- 
travit  "  (t).  Indeed,  Domat  lays  it  down,  as  a  general  doctrine,  that 
those  whose  money  has  been  laid  out  on  improvements  of  an  estate, 
such  as  making  a  plantation,  or  erecting  buildings  upon  it,  or  aug- 
menting the  apartments  of  a  house,  or  for  other  like  causes,  have, 
by  the  civil  law,  a  privilege  upon  those  improvements,  as  upon  a 
purchase  with  their  own  money  (m). 

§  1240.  In  the  first  place,  in  respect  to  repairs,  improvements,  and 
disbursements  upon  personal  property.  Here  the  civil  law  gave  a 
privilege  or  lien  upon  the  thing  in  favour  of  all  artificers  and  other 
persons,  who  had  laid  out  their  money  in  such  meliorations.  Thus,  it 
is  said :  ' '  Quod  quis  navis  f abrieandse,  vel  emendae,  vel  armandas,  vel 
instruendae,  causa,  vel  quoquo  modo  crediderit,  vel  ob  navem  venditam 
petat,  habet  privilegium  post  fiscum  "  {x).  But  there  is  no  such 
privilege  or  lien  recognized  in  English  law. 

§  1242.  Upon  another  point,  some  diversity  of  judgment  has  been 
expressed;  and  that  is,  how  far,  as  between  part-owners,  a  Hen  exists 
on  the  ship  itself  for  any  expenses  incurred  by  one  or  more  of  them 
beyond  their  shares  in  building,  repairing,  or  fitting  out  the  ship  upon 
a  joint  voyage  (y).  In  respect  to  the  proceeds  of  the  joint' adventure 
on  the  voyage,  no  doubt  seems  to  be  entertained  that  they  are  liable 
to  the  disbursements  and  charges  of  the  outfit,  in  the  nature  of  a  lien, 
and  therefore,  that  no  part-owner  can  take  any  portion  of  the  profits, 
until  after  such  expenditures  are  paid  and  deducted.  In  this  respect 
the  part-owners  are  treated  as  partners  in  the  joint  adventure.  But 
the  point,  whether  the  ship  itself  is  liable  for  such  expenditures,  as 
constituting  a  lien  on  it,  turns  upon  somewhat  difierent  considerations. 
Lord  Hardwicke  held,  that  the  ship  was  so  liable;  and  that  the  part- 
owners  of  a  ship,  although  tenants  in  common,  and  not  joint-tenants, 

(r)  Hibbert  v.  Cooke,  1  Sim.  &  St.  552. 

(s)  Dig.  Lib.  12,  tit.  1,  f.  25;  1  Domat,  B.  3,  tit.  1,  §  5,  arts.  5,  7;  Bright  v. 
Boyd,  1  Storv,  478,  494  to  497. 

(t)  Dig.  Lib.  20,  tit.  2,  f.  1 ;  1  Domat,  B.  3,  tit.  1,  §  5,  arts.  6  to  7 ;  ante,  §  1237, 
note.  (u)  1  Domat,  B.  3,  tit.  1,  §  5,  art.  7 ;  ante,  §  1237,  note. 

(x)  Dig.  Lib.  42,  tit.  5,  £E.  34,  36;  1  Domat,  B.  3,  tit.  1,  §  5,  arts.  7,  9;  Story, 
Comm.  on  Agency,  §  §  355  to  367 ;  ante,  §  506. 

(y)  Ex  parte  Bland,  3  Rose,  91 ;  Stewart  v.  Hall,  2  Dow,  29. 


624  EQUITY  JUEISPRUDENCE.  [OH.  XXXU. 

have  a  right,  notwithstanding,  to  consider  the  chattel  as  used  in 
partnership,  and  liable,  as  partnership  efiects,  to  pay  all  debts  what- 
ever, to  which  any  of  them  are  liable  on  account  of  the  ship  («).  Lord 
Eldon  has  expressed  a  directly  contrary  opinion ;  and  has  held  the  ship 
not  to  be  liable  for  such  expenditures  (a). 

§  1243.  Another  species  of  tacit  or  implied  trust,  or,  perhaps, 
strictly  speaking,  of  tacit  or  implied  pledge  or  lien,  is  that  of  each 
partner  in  and  upon  the  partnership  property,  whether  it  consists  of 
lands,  or  stock,  or  chattels,  or  debts,  as  his  indemnity  against  his 
joint  debts,  as  well  as  his  security  for  the  ultimate  balance  due  to  him 
for  his  own  share  of  the  partnership  effects.  We  have  already  had 
occasion  to  allude  to  this  sort  of  lien  (b),  in  considering  joint  purchases 
in  the  name  of  one  partner;  and  it  is  only  necessary  here  to  refer  to 
it  in  this  more  "general  form. 

§  1244.  Another  class  of  implied  liens  or  trusts  arises,  where  pro- 
perty is  conveyed  inter  vivos,  or  is  bequeathed  or  devised  by  last  will 
Eind  testament,  subject  to  a  charge  for  the  payment  of  debts,  or  to 
other  charges  in  favour  of  third  persons.  In  such  cases,  although  the 
charge  is  treated,  as  between  the  immediate  parties  to  the  original 
instrument,  as  an  express  trust  in  the  property,  which  may  be  enforced 
by  such  parties  or  their  proper  representatives;  yet,  as  between  the 
trustee  and  cestuis  que  trust,  who  are  to  take  the  benefits  of  the 
instrument,  it  constitutes  an  implied  or  constructive  trust  only;  a 
trust,  raised  by  courts  of  equity  in  their  favour,  as  an  interest  in  rem, 
capable  of  being  enforced  by  them  directly  by  a  suit  brought  in  their 
own  nam.es  and  right.  Thus,  for  example,  if  a  devise  is  made  of  real 
estate,  charged  with  the  payment  of  debts  generally,  it  may  be  enforced 
by  any  one  or  more  creditors  against  the  devisee,  although  there  is  no 
privity  of  contract  between  him  and  them  {bb). 

§  1245.  There  is,  also,  a  distinction  between  a  devise  of  an  estate 
in  trust  to  pay  debts  and  other  charges,  and  a  devise  of  an  estate 
charged  with,  or  subject  to,  debts  or  other  charges.  In  the  former 
case,  the  devise  is  construed  to  be  a  mere  trust  to  pay  the  debts  or 
other  charges,  giving  no  beneficial  interest  to  the  devisee,  but  holding 
him,  after  the  debts  and  charges  are  paid,  a  mere  trustee  for  the  heir, 
as  to  the  residue.  In  the  latter  case,  the  devise  is  construed  to  convey 
the  whole  beneficial  interest  to  the  devisee,  subject  only  to  the  pay- 
ment of  the  debts,  or  other  charges.  The  distinctions  may  seem  nice ; 
but  it  is  clearly  established  as  a  matter  of  intention  (c). 

(z)  Doddington  v.  Halkett,  1  Ves.  Sen.  497,  and  Belt's  supp.  205,  206. 

(a)  Ex  parte  lounge,  2  Ves.  &  B.  242. 

(b)  Ante,  §  1207 ;  post,  §  1253.     See  also  ante,  §  §  674,  675. 

(bb)  King  v.  Dennison,  1  Ves.  &  B.  260,  272.  See  also  the  case  of  creditors'  trust 
deeds,  ante,  §  1046,  as  an  illustration  of  the  principle  as  applied  to  transactions  inter 
vivos. 

(c)  King  v.  Denison.  1  Ves.  &  B.  260;  In  re  West,  George  v.  Grose,  [1900]  1  Ch. 


§  1243—1248.]  IMPLIED   TRUSTS.  525 

§  1246.  In  this  paragraph  the  learned  author  referred  to  the  con- 
struction of  words  operative  to  create  a  charge  of  debts.  In  England 
the  matter  was  changed  from  one  of  substance  to  one  of  form,  when 
real  estate  became  liable  to  the  payment  of  all  debts.  In  more  recent 
times,  as  already  noticed,  questions  of  form  were  modified  until  the 
only  point  of  practical  importance  to  be  considered  is  whether  the 
primary  liability  of  the  personal  estate  to  discharge  debts  (d)  is  dis- 
placed. Debts  which  are  charges  upon  realty  must  now  be  paid  by 
the  devisee  as  between  him  and  the  other  beneficiaries,  by  force  of  the 
Locke  King's  Acts,   1854,   1867,   1877. 

§  1247.  The  principal  exception  to  this  doctrine  of  the  primary 
liabiHty  of  the  personal  estate  seems  to  be  where  the  testator,  after 
generally  directing  his  debts  to  be  paid  (without  charging  any  funds 
expressly),  has  provided  or  pointed  out  a  specific  realty  or  a  specific 
iund  for  that  purpose  (e) ;  upon  the  ground  of  presumed  intention  in 
the  testator.  If  the  testator  assigns  a  specific  fund  for  the  payment 
of  his  debts,  that  (naturally  enough)  is  construed  to  exclude  any 
intention  to  appropriate  a  more  general  fund  for  the  same  purpose ; 
"  Expressio  unius  est  exclusio  alterius." 

§  1248.  Another  class  of  implied  liens  or  trusts  arises',  or  rather 
is  continued  by  implication,  where  a  party,  who  takes  an  estate 
which  is  already  subject  to  a  debt,  or  other  charge,  makes  himself 
personally  liable  by  his  own  express  contract  or  covenant  for  the 
same  debt  or  charge.  In  such  a  case  the  original  lien  or  charge 
is  not  only  displaced  thereby,  but  the  real  estate  is  treated  through- 
out as  the  primary  fund.  So  that,  in  case  of  the  death-  of  the 
debtor,  as  between  his  heirs,  devisees,  and  distributees,  the  debt, 
if  paid  out  of  his  personal  assets,  will  still  be  deemed  a  primary 
charge  upon  the  real  estate;  and,  as  such,  followed  in  favour  of 
creditors,  legatees,  and  others  entitled  to  the  personal  assets  (/).  Thus, 
for  example,  where  a  settlor,  upon  a  marriage  settlement,  created  a 
trust  term  in  his  real  estate  for  the  raising  of  portions,  and  also 
covenanted  to  pay  the  amount  of  the  portions;  it  was  held  to  be 
a  charge  primarily  on  the  real  estate;  and  the  personal  estate  to 
be  auxiliary  only.  On  that  occasion  it  was  said,  by  the  Master  of 
the  EoUs  (Sir  William  Grant),  "It  is  difficult  to  conceive,  how  a 
man  can  make  himself  a  debtor  (although  by  the  same  instrument 
he  charges  the  real  estate),  without  subjecting  his  personal  assets 
in  the  first  instance  to  the  payment  of  the  debt.  Here  the  settlor 
certainly  makes  himself  a  debtor  by  his  covenant.  Where  a  person 
becomes  entitled  to  an  estate  subject  to  a  charge,  and  then  covenants 

(d)  Tower  v.  Lord  Rous,  18  Ves.  152;  Bootle  v.  Blundell,  1  Mer.  193;  Wells  v.. 
Row,  48  L.  J.  Ch.  476. 

(e)  Webb  v.  Jones,  1  Cox  245;  a.c.  2  Bro.  C.  C.  60;  Glutterbuck  v.  Glutterbuck ,. 
1  Myl.  &  K.  15 ;  Forrest  v.  Prescott,  L.  E.  10  Eq.  545. 

(/)  Loosemore  v.  Knafman,  Kay,  123. 


526  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

to  pay  it,  the  charge  still  remains  primarily  on  the  real  estate;  and 
the  covenant  is  only  a  collateral  security;  because  the  debt  is  not 
the  original  debt  of  the  covenantor  "  {g). 

§  1249.  It  may  now  be  considered  as  the  settled  rule  that  a 
covenant  by  a  settlor,  to  convey  and  settle  lands  (not  specifying  any 
in  particular),  ^ill  not  constitute  a  specific  lien  on  his  lands;  and 
the  covenantee  vi^ill  be  deemed  a  creditor  by  specialty  only  (h).  But 
in  some  cases  of  this  sort  in  favour  of  a  dowress,  courts  of  equity  have 
established  a  lien  upon  real  property,  by  what  has  been  called  a  very 
subtle  equity,  where,  perhaps,  it  would  be  difficult  to  maintain  it  in 
ordinary  cases.  Thus,  where  a  man  before  marriage  gave  a  bond  to 
convey  sufficient  freehold  or  copyhold  estates  to  raise  £600  per 
annum  for  his  intended  wife,  in  bar  of  dower;  and  the  intended  wife, 
by  a  memorandum  subscribed  to  the  bond,  declared  her  free  acceptance 
of  the  jointure  in  bar  and  satisfaction  of  dower;  and  the  marriage 
took  effect,  and  the  husband  died  without  having  conveyed  any  such 
estates ;  it  was  decreed,  that  she  should  be  deemed  a  specialty  creditor, 
and  entitled  to  be  paid  the  arrears  of  her  annuity  out  of  his  personal 
estate  in  the  course  of  administration;  and  if  that  was  not  sufficient, 
then  out  of  the  real  estates  in  the  settlement  of  which  he  was  tenant 
in  tail,  provided  such  deficiencies  did  not  exceed  the  amount  of  the 
dower  which  she  would  have  been  entitled  to  thereout,  in  case  she 
had  not  accepted  the  annuity  for  her  life  (i). 

§  1250.  Another  case  of  implied  trusts,  in  the  author's  view,  was 
an  assignment  of  choses  in.  action,  not  negotiable  at  all,  or  not 
negotiable  by  the  local  law,  and  trusts  created  for  the  benefit  of  a  party, 
who  is  to  be  the  ultimate  receiver  of  the  money,  or  other  thing,  which 
constitutes  the  subject-matter  of  the  trust. 

§  1251.  Another  illustration  of  implied  trusts  may  be  found  in  the 
common  case  of  a  suit  in  equity  by  a  creditor  of  an  estate,  to  recover 
his  debt  from  legatees  or  distributees,  who  have  received  payment  of 
their  claims  from  the  executor  (acting  by  mistake,  but  bona  fide  and 
without  fault)  before  a  due  discharge  of  all  the  debts.  In  such  a  case 
the  executor,  wh.o  has  so  distributed  the  assets,  may  be  sued  at  law  by 
the  creditor.  But  the  legatees  and  distributees,  although  there  was  an 
original  deficiency  of  assets,  are  not  at  law  suable  by  the  creditor.  Yet 
he  has  a  clear  right  in  equity,  in  such  a  case,  to  follow  the  assets  of  the 
testator  into  their  hands,  as  a  trust  fund  for  the  payment  of  his  debt. 
The  legatee  and  distributee  are  in  equity  treated  as  trustees  for  this 
purpose ;  for  they  are  not  entitled  to  anything,  except  the  surplus  of  the 
assets  after  all  the  debts  are  paid.     Besides,  they,  in  the  case  put,  being 

(g)  Lechmere  v.  Charlton,  15  Ves.  197,  198. 

(h)  Countess  of  Mornington  v.  Keane,  2  De  G.  &  J.  292. 

(t)  Forster  v.  Forster,  1  Bro.  C.  C.  489,  493.  The  plaintiff  was  the  widow's  son, 
which  may  explain  the  liability  of  the  estates  of  which  the  covenantor  was  tenant  in 
tail.    It  is  extremely  doubtful  if  the  case  would  be  followed  at  the  present  day. 


§  1249—1255.]  IMPLIED   TRUSTS.  527 

ultimately  responsible  to  pay  the  debt  to  the  executor  out  of  such  assets, 
if  the  executor  should  be  compelled  to  pay  it  to  the  creditor  by  a  suit  at 
law,  may  be  made  immediately  hable  to  the  creditor  in  equity.  But  the 
other  is  the  more  broad  and  general  ground,  as  the  creditor  may  some- 
times have  a  remedy,  when  the  executor,  if  he  has  paid  over  the  assets, 
might  not  have  any  against  the  legatees  or  distributees  (fe). 

§  1253.  A  case  of  an  analogous  nature  is  that  of  partnership  property, 
on  which  the  joint  creditors,  in  case  of  bankruptcy,  are  deemed  in 
equity  to  have  a  right  of  priority  of  payment  before  the  private  creditors 
of  any  separate  partner.  The  joint  property  is  deemed  a  trust  fund, 
primaj-ily  to  be  applied  to  the  discharge  of  the  partnership  debts  against 
all  persons  not  having  a  higher  equity  (I).  A  long  series  of  authorities 
(as  has  been  truly  said)  has  established  this  equity  of  the  joint  creditors, 
to  be  worked  out  through  the  medium  of  the  partners  (m) ;  that  is  to 
say,  the  partners  have  a  right,  inter  se,  to  have  the  partnership  property 
first  applied  to  the  discharge  of  the  partnership  debts,  and  no  partner 
has  any  right  except  to  his  own  share  of  the  residue;  and  the  joint 
creditors  are,  in  case  of  bankruptcy,  substituted  in  equity  to  the  rights 
of  the  partners,  as  being  the  ultimate  cestuis  que  trustent  of  the  fund 
to  the  extent  of  the  joint  debts.  The  creditors,  indeed,  have  no  lien; 
but  they  have  something  approaching  to  a  lien,  that  is,  they  have  a 
right  to  sue  at  law,  and  by  judgment  and  execution,  to  obtain  possession 
of  the  property  (») ;  and  in  equity,  they  have  a  right  to  follow  it,  as  a 
trust,  into  the  possession  of  all  persons  who  have  not  a  superior  title. 
But,  in  the  meantime,  the  creditors  cannot  prevent  the  partners  from 
transferring  it  by  a  bona  fide  alienation. 

§  1254.  Having  considered  some  of  the  more  important  classes  of 
implied  trusts,  arising  from  the  presumed  intention  of  the  parties,  we 
may  next  pass  to  the  consideration  of  those  implied  trusts  (or  perhaps, 
more  properly  speaking,  those  constructive  trusts),  which  are  indepen- 
dent of  any  such  intention,  and  are  forced  upon  the  conscience  of  the 
party,  by  the  mere  operation  of  law.  Some  cases  of  this  sort  have  been 
already  incidentally  mentioned  under  former  heads,  but  a  concise  review 
of  the  general  doctrine  seems  indispensable  in  this  place  to  a  thorough 
understanding  of  Equitable  Jurisdiction  (o). 

§  1255.  One  of  the  most  common  cases  in  which  a  court  of  equity 
has  acted  upon  the  ground  of  implied  trusts  in  invitum  is,  where  a  party 
has  received  money  which  he  cannot  conscientiously  withhold  from 
another  party.      But  in   later  times,  a  jurisdiction  to   enforce  a  bare 

(&)  Anon.,  1  Vern.  162;  Newman  v.  Barton,  2  Vern.  205;  Noel  v.  Robinson,  1 
Vern.  94,  and  Baithby's  note  (1). 

(1)  Ante,  §  §  675,  1207;  post,  §  1253. 

(m)  Campbell  v.  Mullett,  2  Swanst.  574;  Ex  parte  Ruffin,  6  Ves.  126  to  128; 
Taylor  v.  Fields,  4  Ves.  396  ;  Young  v.  Keighley,  15  Ves.  557 ;  ante,  §  §  675,  1207, 1243. 

(w)  See  cases  cited  in  last  note;  Ex  parte  Williams,  11  Ves.  3,  5,  6;  Ex  parte 
Kendall,  17  Ves.  521,  626. 

(o)  Ante,  §  675. 


528  EQUITY    JURISPEUDENCE.  [CH.    XXXII. 

money  claim  where  the  courts  of  common  law  gave  an  adequate  remedy, 
was  disclaimed,  unless  some  special  equity  could  be  shown  (p). 

§  1257.  The  author  then  instanced  cases  where  a  party  purchases 
from  a  trustee  trust  property,  knowing  it  to  be  such,  and  in  violation 
of  the  objects  of  the  trust,  as  aji  illustration  of  a  constructive  trust.  A 
very  eminent  judge  in  more  recent  times  based  the  remedy  upon  fraud, 
although  he  admitted  that  the  accountability  of  the  party  was  co-exten- 
sive with  that  of  an  express  trustee  (g).  Most  decisions  treat  the 
recipient  of  trust  property  with  notice  of  the  trust  as  a  constructive 
trustee  (r)  (indorsing  the  author's  view)  who  has  the  privilege  of  pleading 
the  statute  of  limitations,  which  would  be  displaced  by  any  circum- 
stance of  fraud  (s).  If  a  party  intermeddles  actively  in  the  administra- 
tion of  an  express  trust  he  becomes  an  express  trustee  (t). 

§  1258.  Accordingly,  wherever  the  property  of  a  party  has  been 
wrongfully  misapplied,  or  a  trust  fund  has  been  wrongfully  converted 
into  another  species  of  property,  if  its  identity  can  be  traced  (u),  it 
will  be  held,  in  its  new  form,  liable  to  the  rights  of  the  original  owner, 
or  cestui  que  trust  (x).  The  general  ground  upon  which  it  is  founded 
finds  its  analogical  law,  that  no  change  of  stat-e  or  form  can  justify  a 
breach  of  duty  in  an  agent  in  respect  of  an  application  of  property  (y). 

§  1259.  Thus,  for  instance,  if  A.  is  trusted  by  B.  with  money  to  pur- 
chase a  horse  for  him,  axid  A.  purchases  a  carriage  with  that  money,  in 
violation  of  the  trust,  B.  is  entitled  to  the  carriage,  and  may,  if  he 
chooses  so  to  do,  sue  for  it  at  law.  So,  if  A.  entrusts  money  with  a 
broker,  to  buy  Bank  of  England  stock  for  him,  and  he  invests  the  money 
in  American  stocks,  A.  is  entitled  to,  and  may  maintain  an  action  at  law 
for,  those  stocks,  in  whosesoever  hands  he  finds  them,  not  being  a  pur- 
chaser for  a  valuable  consideration  without  notice.  It  matters  not  in 
the  slightest  degree,  into  whatever  other  form,  diSerent  from  the 
original,  the  change  may  have  been  made,  whether  it  be  that  of  promis- 
sory notes,  or  of  goods,  or  of  stock;  for  the  product  of  a  substitute  for 
the  original  thing  still  follows  the  nature  of  the  thing  itself,  so  long  as 
it  can  be  ascertained  to  be  such.  The  right  ceases  only  when  the  means 
of  ascertainment  fail,  which,  of  course,  is  the  case  when  the  subject- 
matter  is  turned  into  money,  and  mixed  and  confounded  in  a  general 
mass  of  property  of  the  same  description  (a). 

(p)  See  Rogers  v.  Ingham,  3  Ch.  D.  351. 

(g)  Rolfe  V.  Gregory,  iBe  G.  J.  &  S.  576. 

(r)  Hill  V.  Simpson,  7  Ves.  152;  Sheridan  v.  Joyce,  1  Jo.  &  Lat.  401;  Ernest  v. 
Croysdill,  2  De  G.  F.  &  J.  175 ;  In  re  Champion,  Dudley  v  Champion,  [18931  1  Ch 
101. 

(s)  Petre  v.  Petre,  1  Drew.  393. 

(t)  Soar  V.  Ashwell,  [1893]  2  Q.  B.  390,  where  the  principal  cases  are  referred  to. 

(u)  Scott  V.  Beecher,  4  Price,  346. 

(x)  In  re  Champion,  Dudley  v.  Champion,  [1893]  1  Ch.  101. 

{y)  Taylor  v.  Plumer,  3  M.  &  S.  562. 

(z)  Taylor  v.  Plumer,  3  M.  &  S.  562;  Harris  v.  Trueman,  7  Q.  B.  D.  340;  affirmed 
9  Q.  B.  D.  264. 


§  1257 — 1263.]  IMPLIED  TRUSTS.  529 

§  1260.  Cases  may  readily  be  put,  where  this  doctrine  would  be 
enforced  in  equity,  under  circumstances  in  which  it  could  not  be  applied 
at  law.  Thus,  for  instance,  if  a  trustee,  in  violation  of  his  duty,  should 
lay  out  the  trust-money  in  land,  and  take  a  conveyance  in  his  own  name, 
the  cestui  que  trust  would  be  without  any  relief  at  law.  But  a  court 
of  equity  would  hold  the  cestui  que  trust  to  be  the  equitable  owner  of 
the  land,  and  would  decree  it  to  him  accordingly ;  not  upon  any  notion 
of  his  having  ratified  the  act,  but  upon  the  mere  ground  of  a  wrongful 
conversion,  creating,  in  foro  conscientix,  a  trust  in  his  favour  (a). 

§  1261.  Upon  similar  grounds,  where  a  trustee,  or  other  person, 
standing  in  a  fiduciary  relation,  makes  a  secret  profit  out  of  any  transac- 
tions within  the  scope  of  his  agency  or  authority,  that  profit  will  belong 
to  his  cestui  que  trust ;  for  it  is  a  constructive  fraud  upon  the  latter  to 
employ  that  property  contrary  to  the  trust,  and  to  retain  the  profit  of 
such  misapplication ;  and  by  operation  of  equity,  the  profit  is  imme- 
diately converted  into  a  constructive  trust  in  favour  of  the  party  entitled 
to  the  benefit  (b).  For  the  like  reason  a  trustee,  becoming  a  purchaser 
of  the  estate  of  his  cestui  que  trust,  is  deemed  incapable  of  holding  it 
to  his  own  use,  unless  he  has  made  the  fullest  disclosure  to  the  cestui 
que  ti-ust  (c).  Nor  is  the  doctrine  confined  to  trustees,  strictly  so 
called.  It  extends  to  all  other  persons  standing  in  a  fiduciary  relation 
to  the  party,  whatever  that  relation  may  be  {d). 

§  1262.  In  cases  of  this  sort,  the  cestui  que  trust  (the  beneficiary) 
is  not  at  all  bound  by  the  act  of  the  other  party.  He  has  therefore  an 
option  to  insist  upon  taking  the  property,  or  he  may  disclaim  any  title 
thereto,  and  proceed  upon  any  other  remedies,  to  which  he  is  entitled, 
either  in  rem  or  in  personam  (e).  The  substituted  fund  is  only  liable  at 
his  option  (/).  But  he  cannot  insist  upon  opposite  and  repugnant  rights. 
Thus,  for  example,  if  a  trustee  of  land  has  sold  the  land  in  violation  of 
his  trust,  the  beneficiary  cannot  insist  upon  having  the  land,  and  also 
the  notes  given  for  the  purchase-money ;  for,  by  taking  the  latter,  at 
least  so  far  as  it  respects  the  purchaser,  he  must  be  deemed  to  affirm 
the  sale.  On  the  other  hand,  by  following  his  title  in  the  land,  he 
repudiates  the  sale  [g). 

§  1263.  So,  where  an  executor  or  trustee,  instead  of  executing  any 
trust,  as  he  ought,  as  by  laying  out  the  property,  either  in  well-secured 

(a)  Thornton  v.  Stokill,  1  Jur.  N.  S.  751;  In  re  Salmon,  Priest  v.  Uppleby,  42 
Ch.  D.  351. 

(b)  Parker  v.  McKenna,  L.  E.  10  Ch.  96;  In  re  Haslam  v.  Hier  Evans,  [1902]  1 
Ch.  765;  Att.-Gen.  (Canada)  v.  Standard  Trust  Go.  of  N.  Y.,  [1911]  A.  C.  498. 

(c)  Ante,  §  §  321,  322. 

(d)  Brookman  v.  Rothschild,  5  Bligh  N.  S.  165.     See  ante,  §  §  315  to  328. 

(e)  Docker  v.  Somes,  2  MyL  &  K.  665;  Wedderburn  v.  Wedderburn,  2  Keen  722, 
4  M.  &  Cr.  41,  22  Beav.  84. 

(/)  Watts  v.  Girdlestone,  6  Beav.  188,  190,  191. 

ig)  Pocock  V.  Reddington,  5  Ves.  794;  Forrest  v.  Elwes,  4  Ves.  492;  PhilUpson 
v.  Oatty,1  Hare,  516;  s.c.  2  Hall  and  T.  459. 

E.J.  34 


-S30  EQUITY    JUEISPRUDENCE.  [CH.    XXXII. 

real  estates,  or  in  authorized  securities,  takes  upon  himself  to  dispose 
of  it  in  another  manner;  or  where,  being  entrusted  with  stock,  he  sells 
it  in  violation  of  his  trust;  in  every  such  case,  the  parties  beneficially 
entitled  have  an  option  to  make  him  replace  the  stock  or  other  property ; 
or  if  it  is  for  their  benefit,  to  affirm  his  conduct,  and  take  what  he  has 
sold  it  for,  with  interest,  or  what  he  has  invested  it  in;  and  if  he  has 
made  more,  they  may  charge  him  with  that  also.  But  they  cannot  insist 
upon  repugnant  claims;  such  as,  for  instance,  in  the  case  of  a  sale  of 
stock ;  to  have  the  stock  replaced,  and  to  have  interest  (instead  of  the 
dividends),  or  to  take  the  money,  and  have  the  dividends,  as  if  it  had 
remained  stock  (h). 

§  1264.  Wherever  a  trustee  is  guilty  of  a  breach  of  trust  by  the  sale 
of  the  trust  property  to  a  bona  fide  purchaser,  for  a  valuable  considera- 
tion without  notice,  the  trust  in  the  property  is  extinguished.  But  if 
afterwards  he  should  re-purchase,  or  otherwise  become  entitled  to  the 
same  property,  the  trust  would  revive,  and  re-attach  to  it  in  his  hands ; 
for  it  will  not  be  tolerated  in  equity,  that  a  party  shall,  by  his  own 
wrongful  act,  acquire  an  absolute  title  to  that  which  he  is  in  conscience 
bound  to  preserve  for  another.  In  equity,  even  more  strongly  than  at 
law,  the  maxim  prevails,  that  no  man  shall  take  advantage  of  his  own 
wrong  (?').  "  The  only  exception  to  the  rule  which  protects  a  purchaser 
with  notice  taking  from  a  purchaser  without  notice  is  that  which  pre- 
vents a  trustee  buying  back  trust  property  which  he  has  sold,  or  a 
fraudulent  man  who  has  acquired  property  by  fraud  saying  he  sold  it  to 
a  bona  fide  purchaser  without  notice,  and  has  got  it  back  again  "  (k). 

§  1265.  The  truth  is,  that  courts  of  equity  in  regard  to  fraud, 
whether  it  be  constructive  or  actual,  have  adopted  principles  exceed- 
ingly broad  and  comprehensive,  in  the  application  of  their  remedial 
justice;  and,  especially,  where  there  is  any  fraud  touching  property, 
they  will  interfere,  and  administer  a  wholesome  justice,  and  sometimes 
even  a  stem  justice,  in  favour  of  innocent  persons,  who  are  sufferers  by 
it,  without  any  fault  on  their  own  side.  This  is  often  done,  by  eon- 
verting  the  offending  party  into  a  tnistee,  and  making  the  property  itself 
subservient  to  the  proper  purposes  of  recompense,  by  way  of  equitable 
trust  or  lien.  Thus  a  fraudulent  purchaser  will  be  held  a  mere  trustee 
for  the  honest  but  deluded  and  cheated  vendor.  A  person  who  has 
fraudulently  procured  a  conveyance  to  be  made  in  his  favour  by  an 
idiot  or  lunatic,  will  be  held  a  trustee  for  the  benefit  of  the  persons  who 
are  prejudiced  by  the  fraud.  A  person  who  lies  by,  and  without  notice 
suffers  his  own  estate  to  be  sold  and  incumbered  in  favour  of  an  innocent 
purchaser  or  lender,  will  be  held  a  trustee  of  the  estate  for  the  latter. 

(h)  Aspland  v.  Watt,  20  Beav.  474. 

(i)  Bovey  v.  Smith,  2  Ch.  C.  124;  s.c.  1  Vern.  84;  Gordon  v.  Holland,  82  L.  J. 
P.  C.  81. 

(k)  In  re  Stapleford  Colliery  Company,  Barrow's  Case,  14  Oh.  D.  432,  445;  per  Sir 
George  Jessel,  M.E. 


§  1264 — 1269.]  IMPLIED  TRUSTS.  531 

An  heir,  preventing  a  charge  or  devise  of  an  estate  to  another,  by  a 
promise  to  perform  the  same,  personally,  will  be  held  a  trustee  for  the 
latter,  to  the  amount  of  the  charge,  or  beneficial  interest  intended. 
An  agent,  authorized  to  purchase  an  estate  for  another,  who  purchases 
the  same  for  himself,  will  be  held  a  trustee  of  his  principal.  But  it  is 
unnecessary  to  pursue  this  subject  further,  as  many  illustrations  of  a 
like  nature  have  been  already  given  under  the  heads  of  actual  fraud, 
and  constructive  fraud. 

§  1266.  Having  thus  gone  over  most  of  the  important  heads  of  equity 
jurisprudence,  falling  under  the  denomination  of  express  or  implied 
trusts,  we  shall  conclude  this  subject  by  a  short  review  of  some  of  the 
doctrines,  as  to  the  nature  and  extent  of  the  responsibility  of  trustees, 
and  as  to  the  remedies,  which  may  be  resorted  to,  to  enforce  a  due 
performance  of  trusts. 

§  1267.  It  is  not  easy,  in  a  great  variety  of  cases,  to  say  what  the 
precise  duty  of  a  trustee  is ;  and,  therefore,  it  often  becomes  advisable 
for  him,  before  he  acts,  to  seek  the  aid  and  direction  of  a  court  of 
equity;  and  this  he  now  may  do  upon  a  summary  application  imder 
Rules  of  the  Supreme  Court,  Order  LV.,  rule  3.  We  have  already 
seen  that  his  acts  done  to  the  prejudice  of  the  cestui  que  trust  (or 
beneficiary)  are  sometimes  such  as  are  binding,  and  cannot  be  recalled ; 
and  sometimes  are  such  as  a  court  of  equity  will  not  punish  by 
treating  them  as  breaches  of  trust  (Z).  But  the  cases  in  which  such 
acts  will  be  deemed  violations  of  trust,  for  which  a  trustee  will  be 
held  responsible  in  equity,  are  difficult  to  be  defined.  It  has  been 
often  said,  that,  what  he  may  be  compelled  to  do  by  a,  suit  he  may 
voluntarily  do  without  a  suit.  But  this  (as  we  have  also  seen)  is  a 
doctrine  requiring  many  qualifications,  and  by  no  means  to  be 
generally  relied  on  for  safety  (m). 

§  1268.  In  a  general  sense  a  trustee  is  bound  by  his  implied 
obligation,  to  perform  all  those  acts  which  are  necessary  and  proper 
for  the  due  execution  of  the  trust  which  he  has  xmdertaken.  But 
as  he  is  supposed  raerely  to  take  upon  himself  the  trust  as  a  matter 
of  honour,  conscience,  friendship,  or  humanity,  and  as  he  is  not 
entitled  to  any  compensation  for  his  services,  at  least  not  without 
some  express  or  implied  stipulation  for  that  purpose,  the  learned 
author  suggested  that  he  should,  upon  the.  analogous  principles 
applicable  to  bailments,  be  bound  only  to  good  faith  and  reasonable 
diligence;  and,  as  in  the  case  of  a'  gratuitous  bailee,  be  liable  only 
for  gross  negligence.  He  was,  however,  constrained  to  admit  that 
courts  of  equity  do  not,  in  fact,  always  limit  the  responsibility  of 
trustees,  or  measure  their  acts,  by  such  a  rule. 

§  1269.  In  respect  to  the  preservation  and  care  of  trust  property, 
it  has  been  said  that  a  trustee  is  to  keep  it  as  he  keeps  his  own, 

(I)  Ante,  §  §  977  to  979,  995.  (m)  Ante,  §  979. 


532  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

And,  therefore,  if  he  is  robbed  of  money,  belonging  to  his  cestui  que 
trust,  without  his  own  default  or  negligence  (or  perhaps,  strictly 
speaking,  without  his  own  gross  default  or  negUgence),  he  will  not 
be  chargeable.  He  is  even  allowed  in  equity  to  establish,  by  his  own 
oath,  the  amount  so  lost;  for  he  cannot  possibly,  in  ordinary  cases, 
have  any  other  proof  (n.).  So,  if  he  should  deposit  the  money  with 
a  banker  in  good  credit,  or  remit  it  to  the  proper  place  by  a  bill 
drawn  by  a  person  in  due  credit,  and  the  banker  or  drawer  of  the 
bill  should  become  bankrupt,  he  would  not  be  responsible  (o).  The 
rule,  in  all  cases  of  this  sort,  is,  that,  where  a  trustee  acts  by  other 
hands,  either  from  necessity,  or  conformably  to  the  common  usage 
of  mankind,  he  is  not  to  be  made  answerable  for  losses.  This  subject 
was  considered  by  the  House  of  Lords,  and  it  was'  there  laid  down, 
affirming  the  doctrine  here  previously  advanced,  that  a  trustee  is 
bound  to  conduct  the  business  of  the  trust  in  the  same  way  in  which 
an  ordinarily  prudent  man  of  business  conducts  his  own,  and  has  no 
further  obligation.  He  m.ay  employ  brokers  and  agents  in  cases  in 
which  they  are  employed  in  the  ordinary  course  of  business;  and  if 
any  loss  happen  to  the  trust  fund,  through  the  defalcation  of  the 
agent  so  justifiably  employed  by  him,  he  will  not  be  liable.  So  a 
trustee  is  bound  to  exercise  discretion  in  the  choice  of  his  agents,  but 
so  long  as  he  selects  persons  properly  qualified  he  cannot  be  made 
responsible  for  their  intelligence  or  honesty.  He  does  not  in  any 
sense  guarantee  the  performance  of  their  duties  (p).  But  in  employing 
professional  agents  the  trustees  are  not  entitled  to  delegate  to  them 
matters  of  management  and  discretion,  nor  to  commit  to  them  matters 
outside  their  professional  calling  (q).  By  section  17  of  the  Trustee 
Act,  1893  (56  &  57  Vict.  c.  53),  a  trustee — the  power  is  not  applicable 
to  the  agent  of  the  trustee  (r) — may  authorize  a  solicitor  to  receive 
and  give  a  discharge  for  any  money  or  valuable  consideration  or 
property  receivable  by  the  trustee  under  the  trust,  by  permitting  the 
trustee  to  have  the  custody  of  and  to  produce  a  deed  with  a  receipt 
for  the  consideration  money,  and  is  not  to  be  deemed  guilty  of  a 
breach  of  trust  by  reason  of  his  so  doing ;  and  he  may  appoint  a  banker 
or  solicitor  to  be  his  agent  to  receive  the  moneys  due  under  a  policy 
of  assurance,  by  permitting  the  banker  or  solicitor  to  have  the  custody 
of  the  policy  of  assurance  with  a  receipt  signed  by  the  trustee. 
The  section,  however,  requires  the  trustee  to  get  the  money  into  his 
hands  or  under  his  control  within  a  reasonable  time,  which  is  decided 

(n)  Morley  v.  Morley,  2  Ch.  Cas.  2;  Jobson  v.  Palmer,  [1895]  1  Ch.  71. 
(o)  Knight  v.  Lord  Plymouth,  3  Atk.  480;  France  v.  Wood,  Taml.  172;  Bacon  v. 
Clark,  3  M.  &  Cr.  294 ;  Wilkes  v.  Oroom,  3  Drew.  584. 
(p)  Speight  v.  Gaunt,  9  App.  Caa.  1. 

(g)  Fry  v.  Tapson,  28  Ch.  D.  568 ;  In  re  Weall,  Andrews  v.  Weall,  42  Ch.  D.  674. 
(r)  In  re  Hetley  £  Morton's  Contract,  [1893]  3  Ch.  280. 


§   1269—1272.]  IMPLIED    TRUSTS.  533 

upon  the  fact  when  the  trustee  knew  or  ought  to  have  known  that 
the  banker  or  solicitor  has  received  the  money  or  property  (s). 

§  1270.  In  all  cases,  however,  in  which  a  trustee  places  money  in 
the  hands  of  a  banker,  he  should  take  care  to  keep  it  separate  and 
not  mix  it  with  his  own  in  a  common  account;  for,  if  he  should  so 
mix  it,  he  would  be  deemed  to  have  treated  the  whole  as  his  own; 
and  he  would  be  held  liable  to  the  cestui  que  trust  for  any  loss 
sustained  by  the  banker's  bankruptcy  (f). 

§  1271.  In  respect  to  the  manner  of  managing  funds  and  laying 
out  money  on  securities,  and  even  in  respect  to  allowing  trust-money 
to  remain  in  the  hand  of  debtors,  considerable  strictness  is  required 
by  the  rules  of  courts  of  equity.  It  has  been  remarked  by  Lord 
Hardwicke  on  one  occasion,  that  these  rules  should  not  be  laid  down 
with  a  strictness  to  strike  terror  into  mankind,  acting  for  the  benefit 
of  others,  and  not  for  their  own  (m).  And  upon  another  occasion,  as 
a  trust  is  an  office  necessary  in  the  concerns  between  man  and  man, 
and  which,  if  faithfully  discharged,  is  attended  with  no  small  degree 
of  trouble  and  anxiety,  it  is  an'  act  of  great  kindness  in  any  one  to 
accept  it.  To  add  hazard  or  risk  to  that  trouble,  and  to  subject  a 
trustee  to  loss,  which  he  could  not  foresee,  and  consequently  not 
prevent,  would  be  a  manifest  hardship,  and  would  be  deterring  every 
one  from  accepting  so  necessary  an  office  (x). 

§  1272.  There  is  manifest  good  sense  in  these  remarks.  But  they 
came  to  be  systematically  disregarded  in  courts  of  equity.  The 
unnecessary  rigour  of  the  court  in  its  later  history  in  dealing  with 
honest  trustees  at  last  became  a  crying  evil  calling  for  the  intervention 
of  the  legislature.  Summarized,  the  provisions  of  the  statutes  may 
be  said  to  have  created  four  classes  of  trustees — (a)  the  trustee  with 
trust  property  still  in  his  hands  or  under  his  control ;  (b)  the  fraudulent 
trustee ;  (c)  the  rash  and  improvident  trustee  and  (d)  the  honest 
trustee.  The  trustee  who  retains  or  who  can  still  dispose  of  the  trust 
property  of  course  requires  no  protection,  and  the  fraudulent  trustee 
deserves  none.  But  the  two  remaining  classes  may  now  plead  the 
Statute  of  Limitations  as  against  beneficiaries  or  creditors,  with  this 
qualification,  that  the  statute  does  not  run  against  a  beneficiary  unless 
and  until  his  interest  shall  be  an  interest  in  possession :  Trustee  Act, 
1888,  sec.  8  (y).  But  the  court  has  an  extended  power  to  grant  relief 
to  a  trustee  who  has  acted  honestly  and  reasonably,  and  who  ought 
fairly  to  be   excused   for  the   breach   of  trust,    by   section   3   of  the 

(s)  In  re  Sheppard,  De  Brimont  v.  Harvey,  [1911]  1  Ch.  50. 

(t)  Macdonnell  v.  Harding,  7  Sim.  178;  Rehden  v.  Wesley,  29  Beav.  213 

(tt)  Ex  parte  Belcliier,  Ex  parte  Parsons,  Ambler  219. 

(x)  Knight  v.  Earl  of  Plymouth,  1  Dick.  126,  127;  s.c.  3  Atk.  480. 

(y)  Thome  V.  Heard,  [1895]  A.  C.  495;  How  v.  Earl  Winterton,  [1896]  2  Ch. 
626;  Reid — Newfoundland  Go,  v.  Anglo-American  Telegraph  Co.,  [1912]  A.C.  555; 
In  re  Blow,  St.  Bartholomew's  Hospital  v.  Campden,  [1914]  1  Ch.  233;  In  re  Allsop, 
Whitaker  v.  Bamford,  [1914]  1  Ch.  1. 


534  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

Judicial  Trustees  Act,  1896  (z).  A  remunerated  trustee  is  not  entitled 
to  the  same  favourable  consideration  as  a  trustee  who  acts 
gratuitously  (a).  This  section  does  not  entitle  a  trustee  to  deal  in 
an  improvident  manner  with  the  property  committed  to  his  control, 
he  may  be  honest  but  he  must  also  act  reasonably  (b).  Among  the 
acts  which  have  been  judicially  excused  under  the  section  are  trusting 
to  the  honesty  of  an  agent  (c),  misguided  confidence  in  the  skill  of  an 
agent  (d),  refusal  to  embark  on  litigation  where  the  result  was  un- 
certain (e),  or  the  sum  at  stake  small  (/).  But  a  trustee  on 
appropriating  securities  to  some  of  the  shares,  should  take  reasonable 
precautions  to  satisfy  himself  that  securities  retained  to  be  appropriated 
to  other  shares  are  sufficient  (g).  With  these  exceptions,  a  trustee 
must  observe  certain  rules  laid  down  by  courts  of  equity  for  the 
exercise  of  the  discretion  of  trustees,  which  import  (to  say  the  least) 
extraordinary  diligence  and  vigilance  in  the  management  of  the  trust 
property  (h). 

§  1273.  Thus,  if  a  trustee  should  lay  out  trust  funds  in  any  stock 
not  authorized  by  Act  of  Parliament  or  by  the  instrument  creating 
the  trust,  although  there  should  be  no  mala  fides;  yet,  if  the  stock 
should  fall  in  value,  he  would  be  held  responsible  for  the  loss  (t).  In 
other  words,  a  court  of  equity  will,  in  such  cases,  require  that  a 
trustee  should  lact  with  all  the  scrupulous  circumspection,  caution,  and 
wisdom,  with  which  the  court  itself,  from  its  long  experience  and 
superior  means  of  information,  is  accusto^med  to  act:  a  doctrine, 
certainly,  somewhat  perilous  to  trustees,  and  startling  to  uninstructed 
minds.  It  is,  to  adopt  the  language  of  Lord  Bacon,  substituting  for 
the  private  conscience  of  the  trustee,  "  the  general  conscience  of  the 
realm,  which  is  chancery  "  (fc). 

§  1274.  So,  if  a  trustee  should  invest  trust-money  in  mere  personal 
securities,  however  unexceptionable  they  might  seem  to  be,  in  case 
of  any  loss  by  the  bankruptcy  of  the  borrower,  he  would  be  held 
responsible   (Z).     Nay,  it  will  be  at  the  peril  of  the  trustee  to  suffer 

iz)  Perrins  v.  Bellamy,  [1899]  1  Ch.  797;  In  re  AUop,  Whitaker  v.  Bamford, 
[1914]  1  Ch.  1.. 

(a)  National  Trustee  Co.  of  Australasia  v.  General  Finance  Co.,  [1905]  A.  C.  373. 

(b)  In  re  Stuart,  Smith  v.  Stuart,  [1897]  2  Ch.  583;  In  re  Dive,  Dive  v  Roebuck, 
[1909]  1  Ch.  328. 

(c)  In  re  Lord  De  Clifford,  Lord  De  Clifford  v.  Quilter,  [1900]  2  Ch.  707 ;  In  re 
Mackay,  Griessermann  v.  Carr,  [1911]  1  Ch.  300. 

(d)  Perrins  v.  Bellamy,  [1899]  1  Ch.  797 ;  In  re  Allsop,  Whitaker  v.  Bamford, 
[1914]  1  Ch.  1. 

(e)  In  re  Roberts,  Knight  v.  Roberts,  76  L.  T.  479. 

(/)  In  re  Grindey,  Clews  v.  Grindey,  [1898]  2  Ch.  593. 
(g)  In  re  Brookes,  Brookes  v.  Taylor,  [1914]  1  Ch.  558. 
(h)  See  Learoyd  v.  Whiteley,  12  App.  Cas.  727. 

(i)  Hancom  v.  Allen,  2  Dick.  498;  Trafford  v.  Boehm,  3  Atk.  444.  See  Fyler  v. 
Fyler,  3  Beav.  550. 

(fc)  Bacon  on  Uses,  by  Eowe,  p.  10. 

{I)  Adye  v.  Feuilleteau,  1  Cox,  24;  Wilkes  v.  Steward,  Q.  Coop.  6. 


§    1273 1277.]  IMPLIED     TRUSTS. 


535 


a  debt  to  remain  upon  the  mere  personal  credit  of  the  debtor,  although 
the  testator,  who  created  the  trust,  had  left  it  in  that  very  state  (m). 
The  principle  is  even  carried  further ;  and  in  cases  of  personal  security 
taken  by  a  trustee,  he  is  made  responsible  for  .all  deficiencies,  and  is 
also  chargeable  for  all  profits,  if  any  are  made.  So  that  he  acquires 
a  double  responsibihty,  although,  in  such  cases,  he  may  have  acted 
with  entire  good  faith,  in  the  exercise  of  what  he  supposed  to  be  a 
sound  discretion  (w). 

§  1275.  In  relation  to  trust  property,  it  is  the  duty  of  the  trustee, 
whether  it  be  real  estate  or  be  personal  estate,  to  defend  the  title  at 
law,  in  case  of  any  action  being  brought  respecting  it;  to  give  notice, 
if  it  may  be  useful  and  practicable,  of  such  suit  to.  his  cestui  que 
trust;  to  prevent  any  waste,  or  delay,  or  injury  to  the  trust  property; 
to  keep  regular  accounts  (o) ;  to  afford  accurate  information  to  the 
cestui  que  trust  of  the  disposition  of  the  trust  property;  and  if  he 
has  not  all  the  proper  information  to  put  his  beneficiaries  in  the  way 
to  obtain  it  (p).  Finally;  he  is  to  act  in  relation  to  the  trust  property 
witih  reasonable  diligence;  and  in  oases  of  a  joint  trust,  he  must 
exercise  due  caution  and  vigilance  in  respect  to  the  approval  of,  and 
acquiescence  in,  the  acts  of  his  co-trustees;  for,  if  he  should  deliver 
over  the  whole  management  to.  the  others,  and  betray  supine  indiffer- 
ence, or  gross  negligence,  in  regard  to  the  interests  of  the  cestui  que 
trv,st,  he  will  be  held  responsible  (q). 

§  1276.  These  remarks  apply  to  the  ordinary  ease  of  a  trustee, 
having  a  general  discretion  and  exercising  his  powers  without  any 
special  directions.  But  where  special  directions  are  given  by  the 
instrument  creating  the  trust,  or  special  duties  are  imposed  upon 
the  trustee,  he  must  follow  out  the  objects  and  intentions  of  the 
parties  faithfully,  and  be  vigilant  in  the  discharge  of  his  duties. 
There  are,  necessarily,  many  incidental  duties  and  authorities, 
belonging  to  almost  every  trust,  which  are  not  expressed.  But 
these  are  to  be  as  steadily  acted  upon  and  executed,  as  if  they  were 
expressed.  It  would  be  impossible,  in  a  work  like  the  present,  to 
make  even  a  general  enumeration  of  these  incidental  duties  and 
authorities  of  a  trustee ;  as  they  must  always  depend  upon  the  peculiar 
objects  and  structure  of  the  trust. 

§  1277.  In  regard  to  interest  upon  trust  funds,  the  general  rule 
is,  that,  if  a  trustee  has  made  interest  upon  those  funds,  or  ought 

(to)  Lowson  v.  Copeland,  2  Bro.  Ch.  C.  156,  and  Mr.  Belt's  note;  Walker  v. 
Symonds,  3  Swanat.  1;  Styles  v.  Gury,  1  Mac.  &  G.  422;  In  re  Brogden,  Billing  v 
Brogden,  38  Ch.  D.  546. 

(n)  Adye  v.  Feuilleteau,  3  Swanst.  84,  note;  s.c   1  Cox  24. 

(o)  Freeman  v.  Fairlie,  3  Meriv.  29,  41 ;  Pearse  v.  Green,  1  Jac.  &  Walk.  135, 
140;  Adams  v.  Clifton,  1  Buss   297. 

(p)  Walker  v.  Symonds,  3  Swanst.  68,  73;  In  re  Tillott,  Lee  v.  Wilson,  [1892]  1 
Ch.  86;  In  re  Dartnall,  Sawyer  v.  Goddard,  [1895]  1  Ch.  474. 

(q)  Bone  v.  Cook,  McCl.  168;  Burrowes  v.  Wales,  5  De  G.  M.  &  G.  233. 


536  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

to  have  invested  them  so  as  to  yield  interest,  he  shall,  in  each  case, 
be  chargeable  with  the  payment  of  interest  (r).  In  some  oases,  courts 
of  equity  will  even  direct  annual  or  other  rests  to  be  made;  the 
effect  of  which  will  be,  to  give  to  the  cestui  que  trust  the  benefit  of 
compound  interest.  But  such  an  interposition  requires  extraordinary 
circumstances  to  justify  it  (s).  Thus,  for  example,  if  a  trustee, 
in  manifest  violation  of  his  trust,  has  applied  the  trust  funds  to  his 
own  benefit  land  profit  in  trade;  or  has  sold  out  the  trust  stock,  and 
applied  the  proceeds  to  his  own  use;  or  has  conducted  (himself 
fraudulently  in  the  management  of  the  trust  funds;  or  has  wilfully 
refused  to  follow  the  positive  directions  of  the  instrument  creating 
the  trust,  as  to  investments;  in  these,  and  the  like  cases,  courts  of 
equity  will  fix  the  defaulter  with  a  penal  rate  of  interest  (t).  The 
true  rule  in  equity  in  such  cases  is,  to  take  care  that  all  the  gain  shall 
go  to  the  cestui  que  trust. 

§  1278.  The  object  of  this  whole  doctrine  is,  to  compensate  the 
cestui  que  trust,  and  to  place  him  in  the  same  situation  as  if  the 
trustee  had  faithfully  performed  his  own  proper  duty.  It  has  even  a 
larger  and  more  comprehensive  aim,  founded  in  public  policy,  which 
is  to  secure  fidelity  by  removing  temptation,  and  by  keeping  alive  a 
sense  of  personal  interest  and  personal  responsibility.  It  seems,  how- 
ever, to  have  been  of  a  comparatively  late  introduction  into  equity 
jurisprudence ;  and  probably  was  little  known  in  England  at  an  earlier 
period  than  the  reign  of  Charles  the  Second. 

§  1279.  The  Roman  law  acted  with  the  same  protective  wisdom 
and  foresight.  In  that  law,  if  a  guardian,  or  other  trustee,  was  guilty 
of  negligence  in  suffering  the  money  of  his  ward  to  remain  idle,  he 
was  chargeable,  at  least,  with  the  ordinary  interest.  "  Quod  si 
pecunia  mansisset  in  rationibus  pupilli,  prsestandum  quod  bona  fide 
percepisset,  aut  percepere  potuisset,  sed  fcenori  dare,  cum  potuisset, 
neglexisset;  cum  id,  quod  ab  alio  debitore  nomine  usurarum  cum 
sorts  datur,  ei,  qui  accipit,  totum  sortis  vice  fungitur,  vel  fungi 
debet  "  (u).  But  where  the  guardian,  or  other  trustee,  went  beyond 
the  point  of  mere  negligence,  and  was  guilty  of  a  gross  abuse  of  his 
trust,  the  Eoman  law  sometimes  inflicted  upon  him  a  grievous  interest, 
in  the  nature  of  a  compound  interest,  but  often  greatly  exceeding 
it  (x).  "  Quoniam,  ubi  quis  ejus  pecuniam,  cujus  tutelam  negotiave 
administrat,  aut  Magistratus  municipii  publicam  in  usus  suos  convertit, 

(r)  Byrchall  v.  Bradford,  6  Mad.  235 ;  Robinson  v.  Robinson,  1  De  G.  M.  &  G. 
247 ;  Aspland  v.  Watt,  20  Beav.  474. 

(s)  Raphael  v.  Boehm,  11  Ves.  91;  13  Ves.  407,  591;  In  re  Barclay,  Barclay  v. 
Andrew,  [1899]  1  Ch.  674. 

(t)  Hall  v.  Hallet,  1  Cox,  134;  Walmesley  v.  Walmesley,  3  Jo.  &  Lat.  556;  Gray 
v.  Haig,  20  Beav.  219;  In  re  Stevens,  Cooke  v.  Stevens,  [1898]  1  Ch.  162;  In  re  Davis, 
Davis  V.  Davis,  [1902]  2  Ch.  314. 

(u)  Dig  Lib.  26,  tit.  7,  f.  58,  §  1;  ibid.  f.  7,  §  3,  4. 

(x)  See  Pothier,  Band.  Lib.  27,  tit.  3,  n.  47 ;  1  Domat,  B.  5,  tit.  5,  §  1,  art.  14. 


§    1278—1281.]  IMPLIED     TEUSTS.  537 

maximas  usuras  prsestat.  Sed  istius  diversa  causa  est,  qui  non  sibi 
sumsit  ex  administratione  nummos,  sed  ab  amico  accepit,  at  ante 
negotiorum  administrationem.  Nam  illi,  de  quibus  constitutum  est 
(cum  gratuitam  certe  integram  et  abstinentem  omni  lucro  prsestare 
fidem  deberent)  licentia,  qua  videntur  abuti,  maximis  usuris,  vice 
cujusdam  pcEnsB,  subjieiuntur  "  (y). 

§  1280.  In  cases  where  there  are  several  trustees,  the  point  has 
often  arisen,  how  far  they  are  to  be  deemed  responsible  for  the  acts  of 
each  other.  The  general  rule  is,  that  they  are  responsible  only  for 
their  own  acts,  and  not  for  the  acts  of  each  other,  unless  they  have 
made  some  agreement,  by  which  they  have  expressly  agreed  to  be 
bound  for  each  other ;  or  they  have,  by  their  own  voluntary  co- 
operation or  connivance,  enabled  one  or  more  to  accomplish  some 
known  object  in  violation  of  the  trust  (a).  And  the  merejiact  that 
trusteses,  who  are  authorized  to  seU  lands  for  money,  or  to  receive 
money,  jointly  execute  a  receipt  -for  the  money  to  the  party  who  is 
debtor  or  purchaser,  will  not  ordinarily  make  either  liable,  except  for 
so  much  of  the  money  as  has  been  received  by  him;  although  in  the 
case  of  executors,  it  would  be  different.  The  reasons  assigned  for  the 
doctrine  and  the  difference  are  as  follows.  Trutees  have  all  equal 
power,  interest,  and  authority,  and  cannot  act  separately,  as  executors 
may ;  but  must  join,  both  in  conveyances  and  receipts.  For  one 
trustee  cannot  sell  without  the  other;  or  make  a  claim  to  receive 
more  of  the  consideration-money,  or  to  be  more  a  trustee  than  the 
other.  It  would,  therefore,  be  against  natural  justice  to  charge 
them  (seeing  they  are  thus  compellable,  either  not  to  act  at  all  or 
to  act  together)  with  each  other's  receipts,  unless  there  be  some 
default  or  negligence  on  their  own  part,  independent  of  joining  in 
such  receipt  (a). 

§  1281.  The  propriety  of  the  doctrine,  which,  in  favour  of  trustees, 
makes  them  liable  only  for  their  own  acts  and  receipts,  has  never 
been  questioned;  and,  indeed,  stands  upon  principles  of  general  justice. 
It  has  been  well  said,  that  it  seems  to  be  substantial  injustice  to 
decree  a  man  to  answer  for  money  which  he  did  not  receive,  at  the 
same  time,  that  the  charge  upon  him,  by  his  joining  in  the  receipt, 
is  but  riotional  (b).  There  is  a  good  deal  more  question  as  to  the 
distinction,  which  is  made  unfavourably  in  regard  to  executors,  who 
have  a  several  authority  by  law,  and  whose  signature  as  an  admission 
of  liability,  is  now  finally  established  in  the  equity  jurisprudence  of 
England  (c). 

(y)  Dig.  Lib.  3,  tit.  5,  f.  38.  See  also  Dig.  Lib.  26,  tit.  7,  f.  7,  §  4  to  10;  ibid. 
Lib.  6,  tit.  56. 

(z)  Ante,  §  1275. 

(o)  Townley  v.  Sherbume,  J.  Bridgm.  35;  Brice  v.  Stokes,  11  Ves.  319. 

(b)  Lord  Cpwper,  in  Fellows  v.  Mitchell,  1  P.  Will.  83. 

(c)  Brice  v.  Stakes,  11  Ves.  319;  Moses  v.  Levi,  3  Y.  &  C.  Ex.  359. 


538  EQUITY    JUEISPRtJDENCE.  [CH.    XXXII. 

§  1282.  But,  although  the  general  rule,  in  regard  to  trustees,  is 
that  they  shall  be  liable  only  for  their  own  acts  and  receipts,  yet  some 
nice  distinctions  have  been  indulged  by  coiurts  of  equity,  which  require 
notice  in  this  place.  Thus,  for  example,  it  has  been  said,  that,  where 
they  join  in  a  receipt  for  money,  and  it  is  not  distinguisihable  on  the 
face  of  the  receipt,  or  by  other  proper  proofs,  how  much  has  been 
received  by  one  and  how  much  by  the  other  trustee,  it  is  reasonable 
to  charge  each  with  the  whole  (d).  The  case  has  been  likened  to  that 
of  a  man  throwing  his  own  corn  or  money  into  another  man's  heap, 
where  there  is  no  reason  that  he  who  made  this  difficulty  should  have 
the  whole;  on  the  contrary,  because  it  cannot  be  distinguished  he 
shall  have  no  part,  where  he  who  has  made  the  difficulty  shall  not  be 
permitted  to  avail  himself  of  it ;  but,  if  there  is  any  loss,  he  shall  bear 
it  himself  (e). 

§  1283.  Perhaps  the  following  may  be  found  to  be  the  truest  exposi- 
tion of  the  principle,  which  ought,  in  justice,  to  regulate  every  case  of 
this  sort,  whether  it  be  the  case  of  executors,  or  of  guardians,  or  of 
trustees.  It  is,  that  if  two  executors,  guardians,  or  trustees,  join  in  a 
receipt  for  trust  money,  it  is  prima  facie,  although  not  absolutely,  con- 
clusive evidence  that  the  money  came  to  the  hands  of  both.  And  either 
of  them  may  show,  by  satisfactory  proof,  that  his  joining  in  the  receipt 
was  necessary,  or  merely  formal,  and  that  the  money  was,  in  fact,  all 
received  by  his  companion.  But  without  such  satisfactory  proof,  he 
ought  to  be  held  jointly  liable  to  account  to  the  cestui  que  trust  for  the 
money,  upon  the  fair  implication,  resulting  from  his  acts,  that  he  did 
not  intend  to  exclude  a  joint  responsibility  (/).  But,  wherever  either  a 
trustee,  or  an  executor,  by  his  own  negligence  or  laches,  suffers  his  co- 
trustee or  co-executor  to  receive  or  waste  the  trust  fund  or  assets  of  the 
testator,  when  he  has  the  means  of  preventing  such  receipt  and  waste, 
by  the  exercise  of  reasonable  care  and  diligence,  then,  and  in  such  a 
ease,  such  trustee  or  executor  should  be  held  personally  responsible  for 
the  loss  occasioned  by  such  receipt  and  waste  of  his  co-trustee  or  co- 
executor  (g). 

§  1283a..  The  mere  appointment  by  the  trustees  of  one  of  them  to 
be  the  factor  of  the  others  for  the  property,  is  not  of  itself  such  a  breach 
of  trust  as  subjects  the  other  trustees  to  all  the  consequences  of  it,  nor 
does  it  make  them  liable  as  such  for  permitting  the  factor  trustee  to 
retain  balances  in  his  hands,  unless  they  are  thereby  guilty  of  gross 
negligence.  Still,  however,  by  the  appointment  of  such  trustee  as 
factor,  they  become  liable  for  his  default  as  agent,  although  not  as 

(d)  Fellows  V.  Mitchell,  1  P.  Will.  83. 

(e)  Fellows  v.  Mitchell,  1  P.  Will.  83.    Per  Lord  Cowper. 

(/)  Scurjield  v.  Howes,  3  Bro.  C.  C.  90,  and  Mr.  Belt's  notes;  Joy  v.  Campbell,  1 
Sch.  &  Lefr.  341 ;  Williams  v.  Nixon,  2  Beav.  472. 

(g)  Walker  v.  Symonds,  3  Swanst.  1;  Williams  v.  Nixon,  2  Beav.  472;  Dar6t- 
shire  v.  Home,  3  De  G.  M.  &  G.  80. 


§  1282— 1284c.]  IMPLIED   TRUSTS.  539 

trustee,  in  the  same  way  that  they  would  be  Uable  for  the  default  of 
any  other  person  whom  they  might  appoint  to  the  office  Qi).  And  a 
trustee,  by  becoming  the  factor  or  cashier  of  the  trust  property,  does  not 
thereby  incur  any  additional  liability  in  respect  to  its  management 
beyond  what  he  was  subject  to  as  trustee  (i). 

§  1284.  Again ;  if,  by  any  positive  act,  direction,  or  agreement  of 
one  joint  executor,  guardian,  or  trustee,  the  trust  money  is  paid  over, 
and  comes  into  the  hands  of  the  other,  when  it  might  and  should  have 
been  otherwise  controlled  or  secured  by  both,  there  each  of  them  will 
be  held  chargeable  for  the  whole,  or  so  much  thereof  as  has  been  mis- 
applied (&).  So,  if  one  trustee  should  wrongfully  suffer  the  other  to 
detain  -the  trust  money  a  long  time  in  his  own  hands,  without  security ; 
or  should  lend  it  to  the  other  on  his  simple  note;  or  should  join  with 
the  other  in  lending  it  to  a  tradesman  upon  insufficient  security ;  in  all 
such  cases  he  will  be  deemed  liable  for  any  loss  (I).  A  fortiori,  one 
trustee  will  be  liable,  who  has  connived  at,  or  been  privy  to,  an  embezzle- 
ment of  the  trust  money  by  another ;  or  if  it  is  mutually  agreed  between 
them  that  one  shall  have  the  exclusive  management  of  one  part  of  the 
trust  property,  and  the  other  of  the  other  part  (w). 

§  1284a-.  But  here  it  may  be  important  to  take  notice  of  another 
illustration  of  the  doctrine,  that  courts  of  equity  administer  their  aid 
only  in  favour  of  persons  who  exercise  due  diligence  to  enforce  their 
rights,  and  are  guilty  of  no  improper  acquiescence  or  delay ;  upon  the 
maxim  so  often  referred  to,  "  Vigilantibus,  non  dormientibus,  ssquitas 
subvenit. "  Hence,  if  there  be  a  clear  breach  of  trust  by  a  trustee; 
yet,  if  the  cestui  que  trust,  or  beneficiary,  has  for  a  long  time  acquiesced 
in  the  misconduct  of  the  trustee,  with  full  knowledge  of  it,  a  court  of 
equity  will  not  relieve  him  •  but  leave  him  to  bear  the  fruits  of  his  own 
negligence  or  infirmity  of  purpose  (w). 

§  1284b.  The  course  of  inquiry  in  the  courts  of  equity  in  regard  to 
the  default  of  trustees,  is  as  follows : — A  trustee  cannot  be  put  on  trial 
there,  for  an  account  on  the  footing  wilful  default  or  neglect,  unless  the 
plaintiff  prove,  and  in  former  times  also  had  alleged  in  his  pleadings, 
at  least  one  act  of  wilful  neglect,  or  default  before  the  master  (o). 

§  1284c.  And  where  there  are  numerous  trustees,  the  personal 
responsibility  of  each,  for  the  acts  of  the  others,  must  depend  much 

(h)  Home  v.  Pringle,  8  CI.  &  F.  264;  Toplis  v.  HuttbU,  19  Beav.  198;  Shepherd 
V.  Harris,  [1905]  2  Ch.  310. 

(t)  Home  V.  Pringle,  8  CI.  &  F.  264.    See  Davis  v.  Spurling,  1  Eusa.  &  M.  64. 

(fc)  Broadhurst  v.  Balguy,  1  Y.  &  C.  Ch.  17;  Hewitt  v.  Foster,  6  Beav.  259; 
Frutch  V.  Lamprell,  20  Beav.  116. 

(!)  Sadler  v.  Hobbs,  2  Bro.  C.  G.  114;  Keble  v.  Thompson,  3  Bro.  C.  C.  112; 
Langston  v.  Ollivant,  G.  Coop.  33;  Burrows  v.  Walls,  5  De  G.  M.  &  G.  283. 

(m)  Boardman  v.  Mosman,  1  Bro.  C.  C.  68. 

(n)  Broadhurst  v.  Balguy,  1  Y.  &  Coll.  Ch.  16;  Paddon  v.  Bichardson,  7  Be  Gr. 
M.  &  G.  563. 

(o)  Sleight  v.  Lawson,  3  K.  &  J.  292;  In  re  Youngs,  Doggett  v.  Revett,  30  Ch. 
D.  421. 


540  EQUITY    JURISPRUDENCE.  [CH.    XXXII. 

upon  his  ability  to  interpose  and  hinder  the  others  from  pursuing  the 
course  which  resulted  in  the  loss.  This  will  depend  upon  the  nature  of 
the  trust,  and  how  far  the  duty  and  right  to  act  is  joint,  and  incapable 
of  execution,  except  by  the  concurrence  of  all  the  trustees.  In  general, 
this  concurrence  is  required  in  regard  to  trusts  which  are  of  a  private 
and  personal  nature  (p).  But  in  regard  to  such  trusts  as  are  of  a  public 
nature,  the  trustees  may  act  by  the  majority  (g).  But  executors  in 
the  settlement  of  estates,  may  act  severally,  as  in  the  collection  of 
debts  (r). 

§  1285.  In  cases  of  a  breach  of  trust,  the  question  has  arisen,  in 
what  light  the  debt,  created  by  such  breach  of  trust,  is  to  be  viewed ; 
whether  it  is  to  be  deemed  a  debt  by  simple  contract,  and  so  Ijiading 
upon  the  personal  assets,  only,  of  the  trustee,  or  a  debt  by  specialty. 
At  law,  so  far  as  any  remedy  exists  there,  the  debt  is  treated  as  a  simple 
contract  debt,  even  though  the  trust  arises  under  a  deed  executed  by  the 
trustees,  and  contains  a  clause,  that  no  trustee  shall  be  chargeable  or 
accountable  for  any  money  arising  in  execution  of  the  trust,  except  what 
he  shall  actually  receive,  unless  there  be  some  corresponding  covenant 
also  on  the  part  of  the  trustees.  For  this  is  a  common  clause  of  indem- 
nity in  trust  deeds ;  and  the  true  sense  of  it  is,  that  the  trustees  shall  not 
be  accountable  for  more  than  they  receive.  They  are,  in  fact,  account- 
able for  what  they  actually  receive,  but  not  accountable  as  under  a 
covenant  (s). 

§  1286.  The  rule  in  courts  of  equity  is  the  same.  The  debt  created 
by  a  breach  of  trust  is  there  considered  but  as  a  simple  contract  debt, 
even  although  circumstances  of  fraud  appear ;  unless,  indeed,  the  trustee 
in  the  trust  deed  use  any  words  which  can  be  construed  as  a  covenant 
by  himself  (i).  But,  cases  of  this  sort  have  long  since  ceased  to  be  of 
practical  importance  in  England. 

§  1287.  Courts  of  equity  will  not  only  hold  trustees  responsibl©  for 
any  misapplication  of  trust  property,  and  any  gross  negligence  or  wilful 
departure  from  their  duty  in  the  management  of  it;  but  they  will  go 
farther,  and  in  cases  requiring  such  a  remedy,  they  will  remove  the  old 
trustees  and  substitute  new  ones.  Indeed,  the  appointment  of  new 
trustees  is  an  ordinary  remedy,  enforced  by  courts  of  equity  under  their 
inherent  jurisdiction  not  only  where  there  is  a  failure  of  suitable  trustees 
to  perform  the  trust,  either  from  accident,  or  from  the  refusal  of  the  old 
trustees  to  act,  or  from  their  original  or  supervenient  incapacity  to  act, 
but  in  all  cases  where  that  course  is  deemed  advisable  (m).  Where  the 
scheme  of  a  charity  provided,  that  if  "  any  or   either  of   the  trustees 

(p)  Ante,  §  1062. 

(q)  Perry  v.  Shipway,  2  De  G.  &  J.  853. 

(r)  Hudson  v.  Hudson,  1  Atk.  460 ;  Smith  v.  Everett,  27  Beav.  446, 
(s)  Bartlett  v.  Hodgson,  1  T.  E.  42,  44. 

(t)  Vernon  v.  Vawdry,  2  Atk.  119;  Isaacson  v.  Harwood,  L.  E.  3  Ch.  225 ;  Holland 
v.  Holland,  L.  E.  4  Ch.  449. 

(u)  Lettershedt  v.  Broers,  9  App.  Cas.  371. 


§    1285 — 1291.]  IMPLIED     TRUSTS.  541 

should  depart  from  the  United  Kingdom,  from  whatever  cause  or 
motive,  or  under  whatsoever  circumstances,  he  should  be  considered 
as  discharged,  and  disqualified,"  it  was  held  that  a  temporary  absence 
abroad  was  not  within  the  provision  (x).  The  High  Court  is  now 
empowered  by  section  25  of  the  Trustee  Act,  1893  (56  &  57  Vict.  c.  24), 
to  appoint  a  new  trustee  or  new  trustees  either  in  substitution  for  or  in 
addition  to  any  existing  trustee  or  trustees,  or  although  there  is  no  exist- 
ing trustee,  whenever  it  is  expedient  to  do  so,  £ind  it  is  found  inexpedient, 
difficult,  or  impracticable  to  do  so  without  the  assistance  of  the  court. 
And  without  prejudice  to  the  generality  of  this  power,  a  conviction  for 
felony,  or  bankruptcy  (y),  are  particularized  as  grounds  for  removal. 

§  1288.  The  doctrine  seems  to  have  been  carried  so  far  by  the  courts, 
as  to  remove  a  joint  trustee  from  a  trust,  who  wished  to  continue  in  it 
without  any  direct  or  positive  proof  of  his  personal  default,  upon  the 
•  mere  ground  that  the  other  co-trustees  would  not  act  with  him;  for, 
in  a  case  where  a  trust  is  to  be  executed,  if  the  parties  have  become  so 
hostile  to  each  other  that  they  will  not  act  together,  the  very  danger  to 
the  due  execution  of  the  trust,  and  the  due  disposition  of  the  trust  fund, 
requires  such  an  interpositioti  to  prevent  irreparable  mischief  («). 

§  1289.  But,  in  cases  of  positive  misconduct,  courts  of  equity  have 
no  difficulty  in  interposing  to  remove  trustees  who  have  abused  their 
trust  (a).  It  is  not,  indeed,  every  mistake,  or  neglect  of  duty,  or 
inaccuracy  of  conduct  of  trustees,  which  will  induce  courts  of  equity 
to  adopt  such  a  course  (b).  But  the  acts  or  omissions  must  be  such  as 
to  endanger  the  trust  property,  or  to  show  a  want  of  honesty,  or  a 
want  of  a  proper  capacity  to  execute  the  duties,  or  a  want  of  reason- 
able fidelity. 

§  1290.  Before  concluding  the  subject  of  trusts,  it  may  be  proper 
to  say  a  few  words  in  regard  to  such  trusts  as  either  attach  to  trust 
property  situate  in  a  foreign  country,  or  are  properly  to  be  executed  in 
a  foreign  country.  The  considerations  belonging  to  this  branch  of  equity 
jurisprudence  are  not,  indeed,  limited  to  cases  of  trust;  and,  therefore, 
we  shall  here  bring  them  together  in  one  view,  as,  for  the  most  part, 
they  are  equally  applicable  to  every  subject  within  the  reach  of  equitable 
relief. 

§  1291.  The  jurisdiction  of  courts  of  equity,  in  regard  to  trusts,  as 
well  as  to  other  things,  is  not  confined  to  cases  where  the  subject-matter 
is  within  the  absolute  reach  of  the  process  of  the  court,  called  upon  to 
act  upon  it;  so  that  it  can  be  directly  and  finally  disposed  of,  or  affected 
by  the  decree.    If  the  proper  parties  are  within  the  reach  of  the  process 

(x)  In  re  The  Moravian  Society,  26  Beav.  101. 

(y)  In  re  Bridgman's  Trust,  1  Dr.  &  Sm.  164;  In  re  Adam's  Trust,  12  Ch.  D.  634. 

(z)  Uvedale  v.  Ettrick,  2  Ch.  Cas.  130;  decided  by  Lord  Nottingham,  Com.  Dig. 
Chancery,  4  W.  7. 

(a)  Earl  of  Portsmouth  v.  Fellows,  5  Mad.  450;  Mayor  of  Coventry  v.  Att.-Gen., 
7  Bro.  P.  C.  by  Tomlina,  235. 

(6)  Att.-Gen.  v.  Caius  College,  2  Keen  150. 


542  EQUITY    JURISPRUDENCE.  [OH.    XXXII. 

of  the  court,  it  will  be  sufficient  to  justify  the  assertion  of  full  jurisdic- 
tion over  the  subject-matter  in  controversy  (c).  The  decrees  of  courts 
of  equity  do,  primarily  and  properly,  act  in  personam,  and,  at  most, 
collaterally  only  in  rem.  Hence,  the  specific  performance  of  a  contract 
for  the  sale  of  lands,  lying  in  a  foreign  country,  will  be  decreed  in  equity, 
whenever  the  party  is  resident  within  the  jurisdiction  of  the  court  (d). 
So,  an  injunction  will,  under  the  like  circumstances,  be  granted  to  stay 
proceedings  in  a  suit  in  a  foreign  country  (e). 

§  1292.  These  are  not,  however,  peculiar  or  privileged  cases  for  the 
exercise  of  jurisdiction;  for  courts  of  equity  will,  in  all  other  cases,  where 
the  proper  parties  are  within  the  territorial  sovereignty,  or  within  the 
reach  of  the  territorial  process,  administer  full  relief,  although  the  pro- 
perty in  controversy  is  actually  situate  in  a  foreign  country,  unless, 
indeed,  the  relief  which  is  asked  is  of  a  nature  which  the  court  is  incap- 
able of  administering.  Many  instances  of  this  sort  may  readily  be ' 
adduced,  to  illustrate  this  general  doctrine  and  its  exceptions.  Thus, 
a  party  resident  in  England,  who  was  a  joint-tenant  of  land,  situate  in 
Ireland,  was  decreed  to  account  for  waste  of  such  land  in  a  Court  of 
Chancery  in  England,  but  the  bill  so  far  as  it  sought  a  partition  of  the 
same  land  was  dismissed ;  because  (as  has  been  said)  it  is  in  the  realty, 
and  the  court  cannot  award  a  commission  into  Ireland ;  and  a  biU  for 
a  partition  is  in  the  nature  of  a  writ  of  partition  at  the  common  law, 
which  lieth  not  in  England  for  lands  in  Ireland  (/). 

§  1293.  The  same  doctrine  is  applied  to  cases  of  trusts  attached  to 
land  in  a  foreign  country.  They  may  be  enforced  by  a  court  of  equity  in 
the  country  where  the  trustee  is  a  resident,  and  to  whose  process  he 
may  rightfully  be  subjected  (g).  It  is  also  applied  to  cases  of  mort- 
gages of  lands  in  foreign  countries.  And  a  bill  to  foreclose  or  redeem 
such  a  mortgage  may  be  brought  in  any  court  of  equity,  in  any  other 
country,  where  the  proper  parties  are  resident.  It  was  aptly  said,  by 
Sir  Eichard  Pepper  Arden,  Master  of  the  Eolls,  in  a  case  then  before 
him :  "It  was  not  much  litigated  that  the  courts  of  equity  here  have 
an  equal  right  to  interfere  with  regard  to  judgments  and  mortgages  upon 
the  lands  in  a  foreign  country,  as  upon  lands  here.  Bills  are  often  filed 
upon  mortgages  in  the  West  Indies.  The  only  distinction  is,  that  this 
court  cannot  act  upon  the  land  directly,  but  acts  upon  the  conscience 
of  the  person  here."  And  after  citing  some  cases  to  this  efEect,  he 
added:  "  These  cases  clearly  show,  that,  with  regard  to  any  contract 
made  in  equity  between  persons  in  this  country  respecting  lands  in  a 

(c)  Penn  v.  Lord  Baltimore,  1  VeB.  444. 

(d)  Penn  v.  Lord  Baltimore,  1  Ves.  444;  ante,  §  743. 

(e)  Ante,  §  899. 

(/)  GaHeret  v.  Petty,  2  Swanst.  323. 

(g)  Harrison  v.  Ourney,  2  Jac.  &  W.  563;  Hope  v.  Carnegie,  L.  E.  1  Ch.  320; 
Swing  v.  Orr  Ewing,  9  App.  Gas.  34;  10  App.  Gas.  453. 


§  1292—1295.]  IMPLIED    TRUSTS.  543 

foreign  country,  particularly  British  dominions,  this  court  will  hold  the 
same  jurisdiction  as  if  they  were  situate  in  England  "  (h). 

§  1294.  The  same  doctrine  is  applied  to  cases  of  frauds,  touching 
contracts  or  conveyances  of  real  property  situate  in  a  foreign  country. 
Thus,  if  a  rent-charge  is  fraudulently  obtained  on  lands  lying  in  Ireland, 
a  bni  to  set  it  aside  will  be  sustained  in  the  Court  of  Chancery  in 
England,  if  the  defendant  is  a  resident  there  (i).  Courts  of  equity  have 
gone  even  further,  and  have,  in  effect,  as  between  the  parties,  over- 
hauled the  judgments  of  foreign  courts,  and  even  the  sales  made  under 
those  judgments,  where  fraud  has  intervened  in  those  judgments,  or  a 
grossly  inequitable  advantage  has  been  taken  (k).  In  such  cases  they 
do  not,  indeed,  disregard  such  judgments,  or  directly  annul  or  control 
them.  But  they  arrive  at  the  equities  between  the  parties  in  the  same 
manner  as  they  would  if  the  proceedings  had  been  mere  matters  in  pais, 
subject  to  their  general  jurisdiction  (l). 

§  1295.  In  some  instances,  language  has  been  used  which  may  be 
supposed  to  limit  the  jurisdiction  to  cases  where  the  lands,  though 
situate  abroad,  are  yet  within  the  general  sovereignty  of  the  nation 
exerting  the  equitable  jurisdiction  ;  as,  for  instance,  suits  in  the 
Chancery  of  England,  in  regard  to  contracts,  trusts,  frauds,  and  other 
matters,  touching  lands  in  Ireland,  or  in  the  colonies  of  Great  Britain. 
Lord  Hardwicke,  on  one  occasion,  said,  on  this  subject:  "  The  different 
courts  of  equity  are  held  under  the  same  Crown,  though  in  different 
dominions ;  and,  therefore,  considering  this  as  a  court  abroad,  the  point 
of  jurisdiction  is  the  same  as  if  in  Ireland.  And  it  is  certain,  where  the 
provision  is  in  England,  let  the  cause  of  suit  arise  in  Ireland,  or  the 
plantations,  if  the  bill  be  brought  in  England,  as  the  defendant  is  here, 
the  courts  do  agere  in  persona<m,  and  may,  by  compulsion  of  the  person 
and  process  of  the  court,  compel  him  to  do  justice  "  (m).  As  was 
pointed  out  by  the  author,  the  Court  of  Chancery  in  England  exercised 
a  wider  jurisdiction,  but  whether  that  extended  jurisdiction  does  or  does 
not  exist,  the  court  will  not  entertain  proceedings  relating  to  trusts  of 
land  in  a  foreign  country,  except  so  far  as  relates  to  administration  (n). 

(h)  Lord  Granstown  v.  Johnston,  3  Ves.  Jun.  182. 

(i)  Earl  of  Arglasse  v.  Muschamp,  1  Vern.  75. 

(k)  See  Smith  v.  Mojfatt,  L.  E.  1  Eq.  397. 

(I)  Lord  Granstown  v.  Johnston,  3  Ves.  Jun.  170;  Jackson  v.  Petrie,  10  Ves.  165; 
White  v.  Hall,  12  Ves.  321 ;  Story  on  Conflict  of  Laws,  §  644,  545  ;  Com.  Dig.  Chancery, 
3  X.  4  W.  27. 

(to)  Foster  v.  Vassall,  3  Atk.  589. 

(n)  In  re  Hawthorne,  Graham  v.  Massey,  23  Ch.  D.  743;  Deschamps  v.  Miller, 
[1908]  1  Ch.  856. 


544  EQUITY    JURISPRUDENCE.  [CM.    XXXIII. 


CHAPTER    XXXIII. 


PENALTIES   AND   FORFEITURES. 


§  1301.  Having  thus  gone  over  some  of  the  principal  heads  of  trusts, 
which  are  cognizable  in  equity,  we  shall  now  proceed  to  another  im- 
portant branch  of  equity  jurisprudence,  to  wit,  that  which  is  exercised 
in  cases  of  Penalties  and  Forfeitures,  for  breaches  of  conditions  and 
covenants.  Originally,  in  all  cases  of  this  sort,  there  was  no  remedy 
at  law;  but  the  only  relief  which  could  be  obtained  was  exclusively 
sought  in  courts  of  equity.  Courts  of  common  law  were  empowered  by 
statute  to  grant  relief  in  certain  cases,  but  it  was  held  that  the  original 
jurisdiction,  however,  in  equity,  still  remained,  notwithstanding  the 
concurrent  remedy  at  law  (a) ;  and,  a  fortiori,  cases  not  within  the  pur- 
view of  the  statutes  remained  in  the  exclusive  jurisdiction  of  the  Court 
of  Chancery. 

§  1302.  Before  entering  upon  the  examination  of  this  subject,  it 
may  be  well  to  say  a  few  words  in  regard  to  the  nature  and  effect  of 
conditions  at  the  common  law,  as  it  may  help  us  more  distinctly  to 
understand  the  nature  and  extent  of  equity  jurisdiction  in  regard  to 
conditions.  At  law  (and  in  general  the  same  is  equally  true  in  equity), 
if  a  man  undertake  to  do  a  thing,  either  by  way  of  contract  or  by  way  of 
condition,  and  it  is  practicable  to  do  the  thing,  he  is  bound  to  perform 
it,  or  he  must  suffer  the  ordinary  consequences :  that  is  to  say,  if  it  be 
a  matter  of  contract  he  will  be  liable  at  law  for  damages  for  the  non- 
performance ;  if  it  be  a  condition,  then  his  rights,  dependent  upon  the 
performance  of  the  condition,  will  be  gone  by  the  non-performance. 
The  difficulty  which  arises  is,  to  ascertain  what  shall  be  the  eSect  in 
cases  where  the  contract  or  condition  is  impossible  to  be  performed, 
or  where  it  is  against  law,  or  where  it  is  repugnant  in  itself  or  to  the 
policy  of  the  law  (b). 

§  1303.  In  regard  to  contracts,  if  they  stipulate  to  do  anything 
against  law,  or  against  the  policy  of  the  law,  or  if  they  contain  repugnant 
and  incompatible  provisions,  they  are  treated  at  the  commori  law  as 
void ;  for,  in  the  first  case,  the  law  will  not  tolerate  any  contracts  which 
defeat  its  own  purposes ;  and,  in  the  last  case,  the  repugnancy  renders 
it  impossible  to  ascertain  the  intention  of  the  parties ;  and,  until  ascer- 

(a)  See  ante,  §  89 ;  Seton  v.  Slade,  7  Ves.  274. 
(6)  See  Butler's  note  (1)  to  Co.  Litt.  206. 


§    1301 — 1306.]  PENALTIES    AND    FORFEITURES.  645 

tained,  it  would  be  absurd  to  undertake  to  enforce  it.  On  the  other 
hand,  if  the  parties  stipulate  for  a  thing  impossible  to  be  done,  and 
known  on  both  sides  to  be  so,  it  is  treated  as  a  void  act,  and  as  not 
intended  by  the  parties  to  be  of  any  .validity.  But  if  only  one  party 
knows  it  to  be  impossible,  and  the  other  does  not,  and  is  imposed  upon, 
the  latter  may  compel  the  former  to  pay  him  damages  for  the  imposi- 
tion (c).  So,  if  the  thing  is  physically  possible,  but  not  physically 
possible  for  the  party,  still  it  will  be  binding  upon  him,  if  fairly  made ; 
for  he  should  have  weighed  his  own  ability  and  strength  to  do  it  (d). 

§  1304.  In  regard  to  conditions,  they  may  be  divided  into  four 
classes :  (1)  Those  which  are  possible  at  the  time  of  their  creation,  but 
afterwards  become  impossible  either  by  the  act  of  God,  or  by  the  act 
of  the  party ;  (2)  Those  which  are  impossible  at  the  time  of  their  crea- 
tion; (3)  Those  which  are  against  law,  or  public  policy,  or  are  mala  in  se 
or  mala  ■prohibita;  (4)  Those  which  are  repugnant  to  the  grant  or  gift, 
by  which  they  are  created,  or  to  which  they  are  annexed  (e).  The 
general  rule  of  the  common  law  in  regard  to  conditions  is,  that,  if  they 
are  impossible  at  the  time  of  their  creation,  or  afterwards  become  im- 
possible by  the  act  of  God,  or  of  the  law,  or  of  the  party  who  is  entitled 
to  the  benefit  of  them  (as,  for  example,  the  feoffor  of  an  estate,  or  the 
obligee  of  a  bond),  or  if  they  are  contrary  to  law,  or  if  they  are  repugnant 
to  the  nature  of  the  estate  or  grant,  they  are  void.  But,  if  they  are 
possible  at  the  time,  and  become  subsequently  impossible  by  the  act 
of  the  party  who  is  to  perform  them,  then  he  is  treated  as  in  delicto, 
and  the  condition  is  valid  and  obligatory  upon  him.  But  the  operation 
of  this  rule  will,  or  may,  as  we  shall  presently  see,  under  different 
circumstances  of  its  application,  produce  directly  opposite  results  (/). 

§  1305.  In  the  view  of  the  common  law,  a  condition  is  considered 
as  impossible,  only  when  it  cannot,  by  any  human  means,  take  effect; 
as,  for  example,  that  the  obligee  shall  go  from  the  church  of  St.  Peter, 
at  Westminster,  to  the  church  of  St.  Peter,  at  Eome,  within  three  hours. 
But  if  it  be  only  in  a  high  degree  improbable,  and  such  as  it  is  beyond 
the  power  of  the  obligee  to  effect,  it  is  then  not  deemed  impossible  (g). 

§  1306.  Conditions  of  all  these  various  kinds  will  have  a  very 
different  operation,  where  they  are  conditions  precedent,  from  what 
they  will  have  where  they    are    conditions    subsequent.       Thus,    for 

(c)  PuUeHon  v.  Agnew,  1  Salk.  172;  Hall  v.  Cazenove,  4  East,  477;  Com.  Dig. 
Condition,  D.  1. 

(d)  Thornborrow  v.  Whiteacre,  2  Ld.  Eaym.  1164.  A  court  of  equity  would  relieve 
against  a  contract,  like  that  in  2  Ld.  Baym.  1164;  and  James  v.  Morgan,  1  Lev.  Ill, 
upon  the  ground  of  fraud  or  imposition,  or  unoonaoionable  advantage  taken  of  the  party. 
Ante,  §  188,  331. 

(e)  This  is  the  classification  by  Mr.  Butler,  in  his  learned  note  (1)  to  Co.  Litt.  206 
o.    See  also  Com.  Dig.  Condition,  D.  1  to  8. 

(/)  Co.  Litt.  206  a,  and  Butler's  note;  and  post,  §  1307;  In  re  Greenwood,  Good- 
hart  V.  Woodhead,  [1903]  1  Ch.  749. 

(g)  Co.  Litt.  206  a,  and  Mr.  Butler's  note  (1) ;  Com.  Dig.  Condition,  D.  2. 

E.J.  35 


-546  EQUITY    JURISPRUDENCE.  [CH.    XXXIII. 

example,  if  an  estate  is  granted  upon  a  condition  subsequent,  that  is 
to  say,  to  be  performed  after  the  estate  is  vested,  and  the  condition  is 
void  for  any  of  the  causes  above  stated,  there,  the  estate  becomes 
absolute  (h).  But  if  the  condition  is  precedent,  or  to  be  performed 
before  the  estate  vests,  there,  the  condition  being  void,  the  estate, 
which  depends  thereon,  is  void  also,  and  the  grantee  shall  take  nothing 
by  the  grant;  for  he  hath  no  estate,  until  the  condition  is  performed  (i). 
Thus,  if  a  feoffment  is  made  to  a  man  in  fee-simple,  on  condition,  that, 
unless  he  goes  from  England  to  Rome  in  twenty-four  hours,  or  unless 
he  marries  A.  before  such  a  day,  and  she  dies  before  that  day,  or  marries 
the  feoffor,  or  unless  he  kills  another,  or  in  case  he  aliens  in  fee,  then, 
and  in  every  such  case,  the  estate  shall  be  void,  and  determine;  in 
all  these  cases,  the  condition  is  void,  or  impossible,  and  being  a  condi- 
tion subsequent,  the  estate  is  absolute  in  the  feoffee.  But  if,  on  the 
other  hand,  a  grant  be  made  to  a  man,  that,  if  he  kills  another,  or  if 
he  goes  from  England  to  Rome  within  twenty-four  hours,  or  if  he 
marries  A.  before  such  a  day,  and  before  that  day  she  dies,  or  if  he  does 
not  aliene  an  estate  before  such  a  day,  and  he  has  already  aliened  it,  then, 
and  in  that  event,  he  shall  have  an  estate  in  fee ;  in  all  these  cases,  the 
condition  being  void,  or  impossible,  and  being  a  condition  precedent, 
no  estate  ever  vests  in  the  grantee  (k). 

§  1307.  On  the  other  hand,  if  a  bond  or  other  obligation  be  upon 
a  condition,  which  is  impossible,  illegal,  or  repugnant  at  the  time  when 
it  is  made,  the  bond  is  single,  and  the  obligor  is  bound  to  pay  it.  But, 
if  the  condition  be  possible  at  the  time  when  it  is  made,  and  afterwards 
becomes  impossible  by  the  act  of  God,  or  of  the  law,  or  of  the  obligee, 
there,  the  bond  is  avoided,  and  the  obligor  is  not  bound  to  pay  it  (I). 
But,  if  the  condition  is  in  the  disjunctive  and  gives  liberty  to  do  one 
thing  or  another,  at  the  election  of  the  obligor;  and  both  are  possible 
at  the  time,  but  one  part  is  or  afterwards  becomes  impossible  by  the 
act  of  God,  or  of  the  obligee,  that  which  is  possible,  ought  to  be  per- 
formed (Tn). 

§  1307a.  And  where  a  devise  was  made  to  the  vicar  of  a  certain 
parish  upon  condition  to  read  prayers,  in  the  church,  at  the  hour  of 
eleven  in  the  forenoon,  upon  every  Wednesday,  for  ever;  and  that 
every  vicar  who  did  not  observe  the  condition  should  take  no  advantage 
from  the  will ;  it  was  held  that  the  neglect  upon  which  the  devise  would 

(fc)  Ridgway  v.  Woodhouse,  7  Beav.  437 ;  Gorbett  v.  Corbett,  14  P.  D.  7 ;  Part- 
ridge V.  Partridge,  [1894]  1  Ch.  351. 

(t)  Roundel  v.  Currer,  2  Bro.  C.  C.  67;  Robinson  v.  Wheelwriqht,  6  De  G. 
M.  &  G.  535. 

(k)  Co.  Litt.  206  a. 

(l)  Com.  Dig.  Condition,  1;  Co.  Litt.  206  a;  Butler  v.  Wigge,  1  Wins.  Saund.  84; 
Thornborrow  v.  Whiteacre,  2  Ld.  Raym.  1164;  Roberts  v.  Bury  Improvement  Commis- 
sioners, L.  E.  5  C.  P.  310. 

(m)  Com.  Dig.  Condition  D.  1,  Laughter's  Case,  5  Co.  21  b ;  Butler  v.  Wigge,  1 
Wins.  Saund.  84;  Da  Costa  v.  Davis,  1  Boa.  &  P.  242 


§    1307 1310.]  PENALTIES    AND    FORFEITURES.  547 

go  over  must  be  a  wilful  neglect,  and  that  a  vicar  who  did  all  in  his 
power  to  get  a  congregation  together  at  the  church  to  hear  prayers,  and 
could  not,  was  not  bound  to  tender  himself  every  Wednesday  morning, 
at  the  church,  to  perform  the  duty,  in  order  to  save  the  benefits  of  the 
devise  (n). 

§  1308.  The  Eoman  law,  if  it  does  not  entirely  coincide  with  the 
common  law  on  the  subject  of  conditions,  is,  in  many  respects,  founded 
on  similar  considerations.  If  an  impossible  condition  was  annexed  to 
a  stipulation,  the  stipulation  was,  by  that  law,  void.  "  Si  impossibilis 
conditio  obligationibus  adjiciatur,  nihil  valet  stipulatio  (o).  Item;  quod 
leges  fieri  prohibent,  si  perpetuam  causam  (prohibitionis)  servaturum 
est,  cessat  obligatio  "  (p).  That  rule,  of  course,  applied  to  the  case 
where  the  condition  constituted  a  part  of  the  stipulation.  "  Impossi- 
bilium  nulla  obligatio  est  "  (q).  Pothier  states  the  doctrine  of  the  civil 
law  in  the  following  manner.  The  condition  of  a  thing  impossible,  un- 
lawful, or  contrary  to  good  morals,  under  which  one  promises  anything, 
renders  the  act  absolutely  void,  when  it  lies  in  feasance  (in  faciendo), 
and  no  obligation  springs  from  it  (r).  As,  if  I  have  promised  you  a  sum 
of  money  upon  condition  that  you  make  a  triangle  without  angles,  or 
that  you  shall  go  naked  through  the  streets  (s). 

§  1309.  In  another  place,  a  distinction  is  taken  in  the  Roman  law 
approaching  nearer  to  that  in  the  common  law.  "  Impossibilis  con- 
ditio, cum  in  faciendum  concipitur,  stipulationibus  obstat;  alitor  atque, 
si  talis  conditio  inseratur  stipulationi,  si  in  coelum  non  ascenderit;  nam 
utilis  et  proesens  est,  et  peouniam  ereditam  continet  "  (f). 

§  1310.  A  condition  was  accounted  impossible  in  the  Eoman  law 
when  it  consisted  of  a  thing  of  which  nature  forbids  the  existence. 
"  Impossibilis  autem  conditio  habetur,  oui  natura  impedimento  est, 
quominus  existat  "  (u).  But  a  stipulation,  which  was  not  possible  to 
be  complied  with  by  the  party  stipulating,  but  was  possible  to  another 
person,  was  held  obligatory.  "  Si  ab  eo  stipulatus  sim,  qui  eificere  non 
possit,  quum  alii  possibile  sit;  jure  factam  obligationem,  Sabinus 
scribit "  (x).  The  same  principles  were  still  more  emphatically 
expounded  in  other  places  in  the  Digest.  ' '  Non  solum  stipulationes 
impossibili  conditione  adplicatse  nullius  momenti  sunt;  sed  etiam  casteri 

(n)  Conington's  Will,  in  re,  6  Jur.  N.  S.  992.  One  might  be  allowed  to  question 
here,  how  far  the  testator's  purpose  depended  upon  the  presence  of  a  congregation.  He 
might  have  supposed  prayers  not  altogether  idle,  in  the  absence  of  hearers;  and  shall 
his  purpose  be  frustrated  ? 

(o)  Inst.  B.  3,  tit.  20,  §  11;  Pothier,  Pand.  Lib.  45,  tit.  1,  nn.  40,  98. 

(p)  Pothier,  Pand.  Lib.  45,  tit.  1,  n.  39;  Dig.  Lib.  45,  tit.  1,  f.  35,  §  1. 

(g)  Dig.  Lib.  50,  tit.  17,  f.  185. 

(r)  Pothier,  Oblig.  n.  204. 

(s)  Ibid. 

(t)  Dig.  Lib.  45,  tit.  1,  f.  7;  Inst.  Lib.  3,  tit.  20,  §  11;  Pothier,  Oblig.  n.  204; 
Pothier,  Pand.  Lib.  46,  tit.  1,  n.  98. 

(u)  Ibid.  :  Inst.  Lib.  3,  tit.  20,  §  11. 

(x)  Dig.  Lib.  34,  tit.  1,  f.  137,  §  5 ;  Pothier,  Pand.  Lib.  46,  tit.  1,  n.  39. 


548  EQUITY    JURISPRUDENCE.  [CH.    XXXIII. 

quoque  contractus  (veluti  emtiones  locationes)  impossibili  eonditione 
interposita,  seque  nuUius  momenti  sunt.  Quia  in  ea  re,  quae  ex  duorum 
pluriumve  consensu  agitur,  omnium  voluntas  spectetur;  quorum  procul 
dubio,  in  hujusmodi  actu  talis  cogitatio  est,  ut  nihil  agi  existiment, 
apposita  ea  eonditione,  quam  soiant  esse  impossibilem  "  (y). 

§  1311.  From  what  has  been  already  said,  it  is  obvious  that  if  a 
condition  or  covenant  was  possible  to  be  performed,  there  was  an  obliga- 
tion on  the  party,  at  the  common  law,  to  perform  it  punctiliously.  If 
he  failed  so  to  do,  it  was  wholly  immaterial,  whether  the  failure  was 
by  accident,  or  mistake,  or  fraud,  or  negligence.  In  either  case,  his 
responsibility  dependent  upon  it  became  absolute,  and  his  rights  depen- 
dent upon  it  became  forfeited  or  extinguished.  Thus,  for  example,  if 
a  bond  was  made  with  a  penalty  of  £1,000,  upon  condition,  that,  if 
£100  were  paid  to  the  obligee  on  or  before  a  certain  day  it  should  be 
void,  if  it  was  not  paid  at  that  day,  from  any  cause  whatsoever,  except 
the  fault  of  the  obligee,  the  obligation  became  single,  and  the  obligor 
was  compellable,  at  law,  to  pay  the  whole  penalty.  So,  if  an  estate  was 
conveyed  upon  condition,  that,  if  a  certain  sum  of  money  was  paid  to 
the  grantee  on  or  before  a  certain  day,  it  should  be  void  (which  con- 
stituted what  we  will  now  call  a  mortgage),  if  the. money  was  not  paid 
at  the  day,  the  estate  became  (as  we  have  seen),  at  law,  absolute  (s). 
So  (as  has  already  been  stated),  if  a  sale  was  made  of  an  estate,  to  be 
paid  for  at  a  particular  day,  if  the  money  was  not  paid  at  the  day,  the 
right  of  the  vendee,  to  enforce  a  performance  of  the  contract  at  law, 
was  extinguished.  On  the  other  hand,  if  the  vendor  was  unable  or 
neglected,  at  the  day  appointed,  to  make  a  conveyance  of  the  estate, 
the  sale,  as  to  him,  became  utterly  incapable  of  being  enforced  at  law  (a). 

§  1312.  Courts  of  equity  did  not  hold  themselves  bound  by  such 
rigid  rules ;  but  they  were  accustomed  to  administer,  as  well  as  to  refuse 
relief,  in  many  cases  of  this  sort,  upon  principles  peculiar  to  themselves; 
sometimes  refusing  relief,  and  following  out  the  strict  doctrines  of  the 
common  law  as  to  the  efEect  of  conditions  and  conditional  contracts ; 
and  sometimes  granting  relief  upon  doctrines  wholly  at  variance  with 
those  held  at  the  common  law.  It  may  be  necessary,  therefore,  to  con- 
sider each  distinct  class  of  cases  separately;  so  that  the  principles 
which  governed  in  each  may  be  more  clearly  developed. 

§  1313.  In  the  first  place,  as  to  relief  in  cases  of  penalties  annexed 
to  bonds  and  other  instruments,  the  design  of  which  is  to  secure  the  due 
fulfilment  of  the  principal  obligation  (fo).  The  origin  of  equity  jurisdic- 
tion in  cases  of  this  sort,  is  certainly  obscure,  and  not  easily  traced  to 
any  very  exact  source.      It  is  highly  probable,  that  relief  was  first  granted 

(y)  Dig.  Lib.  44, .tit!  7,  f.  31 ;  Pothier,  Pand.  Lib.  45,  tit.  1,  n.  98. 

(z)  Ante,  §  §  1004, 1012.  (o)  Ante,  §  §  771,  772,  776,  777. 

(b)  Mr.  Evans,  in  a  learned  note  to  Pothier  on  Obligations  (vol,  2,  No.  12,  pp.  81 
to  111)  has  given  a  very  elaborate  review  of  the  doctrine  of  penal  obligations,  to  which 
I  invite  the  particular  attention  of  the  reader. 


§    1311 — 1315.]  PENALTIES  AND   FORFEITURES.  549 

upon  ,the  ground  of  accident,  or  mistake,  or  fraud,  and  was  limited 
to  cases  where  the  breach  of  the  condition  was  by  the  non-payment 
of  money  at  the  specified  day.  In  such  cases,  courts  of  equity  seem  to 
have  acted  upon  the  ground,  that  by  compelling  th©  obligor  to  pay 
interest  during  the  time  of  his  default,  the  obligee  would  be  plticed  in 
the  same  situation,  as  if  the  principal  had  been  paid  at  the  proper  day. 
They  wholly  overlooked  (as  has  been  said)  the  consideration,  that  the 
failure  of  payment  at  that  day  might  be  attended  with  mischievous 
consequences  to  the  obligee,  which  (in  a  rational  sense)  never  could  be 
cured  by  any  subsequent  payment  thereof,  with  the  addition  of  interest. 
Upon  this  account,  the  practice  of  affording  relief  in  such  cases  has 
been  attacked,  but  the  authority  of  the  decisions  regretfully  admitted  (c). 

§  1314.  But  whatever  may  be  the  origin  of  the  doctrine,  it  has  been 
for  a  great  length  of  time  established,  and  is  now  expanded,  §o  as  to 
embrace  a  variety  of  cases  not  only  where  money  is  to  be  paid,  but 
where  other  things  are  to  be  done,  and  other  objects  are  contracted 
for.  In  short,  the  general  principle  now.,  adopted  is,  that,  wherever  a 
penalty  is  inserted  merely  to  secure  the  performance  or  enjoyment  of 
a  collateral  object,  the  latter  is  considered  as  the  principal  intent  of 
the  instrument,  and  the  penalty  is  deemed  only  as  accessory,  and, 
therefore,  as  intended  only  to  secure  the  due  performance  thereof  or 
the  damage  really  incurred  by  the  non-performance  (d).  In  every 
such  case,  the  true  test  by  which  to  ascertain  whether  relief  can  or 
cannot  be  had  in  equity  is,  to  consider  whether  the  parties  have  agreed 
to  treat  the  sum  mentioned  as  a  complete  satisfaction  for  the  breach ; 
if  they  have,  courts  of  equity  will  refuse  their  peculiar  remedies  (e). 
If  it  is  t-o  secure  the  performance  of  some  collateral  act  or  under- 
taking, then  courts  of  equity  will  grant  relief,  on  the  defendant  paying 
the  damages  which,  to  the  court,  seem  tO'  meet  the  necessity  of  the 
case  (/). 

§  1315.  The  same  doctrine  has  been  applied  by  courts  of  equity 
to  cases  of  leases,  where  a  forfeiture  of  the  estate,  and  an  entry  for  the 
forfeiture,  is  stipulated  for  in  the  lease,  in  case  of  the  non-payment 
of  the  rent  at  the  regular  days  of  payment;  for  the  right  of  entry  is 
deemed  to  be  intended  to  be  a  mere  security  for  the  payment  of  the 
rent  (g)..  It  has  also  been  applied  to  cases  where  a  specific  per- 
formance of  contracts  is  sought  to  be  enforced,  and  yet  the  party  has 
not  punctually  performed  the  contract  on  his  own  part,  but  has  been 

(c)  Lord  Bldon,  C,  Reynolds  v.  Pitt,  19  Ves.  134,  140;  Jessel,  M.E.,  Wallis  v. 
Smith,  21  Ch.  D.  243,  257. 

(d)  Logan  v.  Wienholt,  1  CI.  &  F.  617 ;  National  Provincial  Bank  v.  Marshall, 
40  Ch.  D.  112 ;  Sloman  v.  Walter,  1  Bro.  C.  C.  418. 

(e)  French  v.  Macale,  2  Dra.  &  War.  269. 

(/)  Sloman  v.  Walter,  1  Bro.  C.  C.  418;  Astley  v.  Weldon,  2  Bos.  &  P.  346; 
In  re  Dagenham  (Thames)  Dock  Co.,  L.  E.  8  Ch.  1022;  Kilmer  v.  British  Columhia 
Orchard  Lands,  Lim.,  [1913]  A.  C.  319. 

(g)  Hill  V.  Barclay,  18  Ves.  58;  Nohes  v.  Gibbon,  8  Drew.  681. 


550  EQUITY    JURISPEUDENCE.  [CH.    XXXIII. 

in  default  (h).  And,  in  cases  of  this  sort,  admitting  of  compensation, 
there  is  rarely  any  distinction  allowed  in  courts  of  equity  between 
conditions  precedent  and  conditions  subsequent;  for  it  has  been  truly 
said,  that,  although  the  distinction  between  conditions  precedent  and 
conditions  subsequent  is  known  and  often  mentioned  in  courts  of 
equity,  yet  the  prevaiUng,  though  not  the  universal,  distinction  as  to 
conditions  there,  is  between  cases  where  compensation  can  be  made 
and  cases  w^here  it  cannot  be  made,  without  any  regard  to  the  fact 
whether  they  are  conditions  precedent  or  conditions  subsequent  (i). 
§  1316.  The  true  foundation  of  the  relief  in  equity  in  all  these 
cases  is,  that,  as  the  penalty  is  designed  as  a  mere  security,  if  the 
party  obtains  his  money,  or  his  damages,  he  gets  all  that  he  expected, 
and  all  that,  in  justice,  he  is  entitled  to  (k).  And,  notwithstanding  the 
objections,  which  have  been  sometimes  urged  against  it,  this  seems  a 
sufficient  foundation  for  the  jurisdiction.  In  reason,  in  conscience, 
in  natural  equity,  there  is  no  ground  to  say,  because  a  man  has 
stipulated  for  a  penalty  in  case  of  his  omission  to  do  a  particular  act 
(the  real  object  of  the  parties  being  the  performance  of  the  act),  that, 
if  he  omits  to  do  the  act,  he  shall  suffer  an  enormous  loss,  wholly 
disproportionate  to  the  injury  to  the  other  party.  If  it  be  said,  that 
it  is  his  own  folly  to  have  made  such  a  stipulation,  it  may  equally 
well  be  said,  that  the  folly  of  one  man  cannot  authorize  gross 
oppression  on  the  other  side.  And  law,  as  a  science,  would  be  un- 
worthy of  the  name,  if  it  did  not  to  some  extent  provide  the  means 
of  preventing  the  mischiefs  of  improvidence,  rashness,  blind  confi- 
dence, and  credulity  on  one  side;  and  of  skill,  avarice,  cunning,  and 
a  gross  violation  of  the  principles  of  morals  and  conscience,  on  the 
other.  There  are  many  oases  in  which  courts  of  equity  interfere  upon 
mixed  grounds  of  this  sort.  There  is  no  more  intrinsic  sanctity  in 
stipulations  by  contract,  than  in  other  solemn  acts  of  parties,  which 
are  constantly  interfered  with  by  courts  of  equity  upon  the  broad 
ground  of  public  policy,  or  the  pure  principles  of  natural  justice. 
Where  a  penalty  or  forfeiture  is  designed  merely  as  a  security  to 
enforce  the  principal  obligation,  it  is  as  much  against  conscience  to 
allow  any  party  to  pervert  it  to  a  different  and  oppressive  purpose,  as 
it  would  be  to  allow  him  to  substitute  another  for  the  principal 
obligation.  The  whole  system  of  equity  jurisprudence  proceeds  upon 
the  ground,  that  a  party  having  a  legal  right,  shall  not  be  permitted 
to  avail  himself  of  it  for  the  purposes  of  injustice,  or  fraud,  or 
oppression,  or  harsh  and  vindictive  injury  (I). 

(h)  Ante,  §§  771  to  778;  Hill  v.  Barclay,  18  Ves.  58,  59;  s.o.  16  Ves.  403,  405. 
See  Gregory  v.  Wilson,  9  Hare,  683. 

(i)  Taylor  v.  Popham,  1  Bro.  C.  C.  168;  Hollinrake  v.  Lister,  1  Euss.  508.  See 
In  re  Lewis,  Lewis  v.  Lewis,  [1904]  2  Ch.  656,  and  ante,  §  1306. 

(k)  Peachy  v.  The  Duke  of  Somerset,  1  Str.  447,  453. 

(/)  It  seema  unnecessary  to  reproduce  the  contrary  view  of  a  mere  question  of 
policy,  entertained  by  Lord  Eldon,  and  adverted  to  by  the  learned  author  in  a  note 


§    1316 — 1317.]  PENALTIES    AND   FORFEITURES.  551 

§  1316a.  The  same  principle  of  general  justice  is  applied  in  favour 
of  the  party  entitled  to  the  security  of  tJhe  penalty,  wherever  the  other 
party  has  unreasonably  deprived  him  of  his  right  to  enforce  it,  until 
it  is  no  longer  adequate  to  secure  his  rights.  In  a  court  of  equity 
as  well  as  in  a  court  of  law,  the  penalty  measured  the  liability  of  the 
obligor  (m);  but  courts  of  equity  will  decree  the  obligee  of  a  bond, 
interest  beyond  the  penalty  of  the  bond,  where,  by  unfounded  and 
protracted  litigation,  the  obligor  has  prevented  the  obligee  from 
prosecuting  his  claim  at  law  for  a  length  of  time,  or  by  some  other 
misconduct  on  his  part,  has  deprived  the  latter  of  his  legal  rights, 
when  they  might  otherwise  have  been  made  available  at  law.  In 
sUeh  eases  courts  of  equity  do  no  more  than  supply  and  administer, 
within  their  own  jurisdiction,  a  substitute  for  the  original  legal  rights 
of  the  obligee,  of  which  he  has  been  unjustifiably  deprived  by  the 
misconduct  of  the  obligor  (n).  So,  if  a  mortgagor  has  given  a  bond 
with  a  penalty,  as  well  as  a  mortgage  for  the  security  of  a  debt, 
although  the  creditor  suing  on  the  bond  can  recover  no  more  than  the 
penalty,  even  when  the  interest  due  thereon  exceeds  it ;  yet,  if  he  sues 
on  the  mortgage,  courts  of  equity  will  decree  him  all  the  interest  due 
upon  the  debt,  although  it  exceeds  the  penalty;  for  the  bond  is  but  a 
collateral  security,  and  in  such  a  case,  it  will  not  make  any  difference, 
that  the  mortgage  is  given  by  a  surety  (o). 

§  1317.  It  is  not  improbable  that  courts  of  equity  adopted  this 
doctrine  of  relief,  in  cases  of  penalties  and  forfeitures,  from  the 
Eoman  law,  where  it  is  found  regularly  unfolded,  and  sustained  upon 
the  clear  principles  of  natural  justice.  The  Eoman  law  took  notice, 
not  only  of  conditions,  strictly  so  called,  but  also  of  clauses  of  nullity 
and  penal  clauses.  The  former  were  those,  in  which  it  was  agreed 
that  a  covenant  should  be  null  or  void  in  a  certain  event ;  the  latt-er 
were  those  where  a  penalty  was  added  to  a  contract  for  non-perform- 
ance of  that  which  was  stipulated  (p).  The  general  doctrine  of  that 
law  was,  that  clauses  of  nullity  and  penal  clauses  were  not  to  be 
executed  according  to  the  rigour  of  their  terms.  And,  therefore, 
covenants  were  not  of  course  dissolved,  nor  forfeitures  or  penalties 
positively  incurred,  if  there  was  not  a  punctillious  performance  at  the 
very  time  fixed  by  the  contract.  But  the  matter  might  be  required 
to  be  submitted  to  the  discretion  of  the  proper  judicial  tribunal,  to 
decide  upon  it  according  to  all  the  circumstances  of  the  case,  and  the 
nature  and  objects  of  the  clauses  (q).     Indeed,  penalties  were  in  that 

at  thk  place.  See  Hill  v.  Barclay,  16  Ves.  402;  18  Ves.  56;  Reynolds  v.  Pitt,  19 
Ves.  134;  also  the  opinion  of  Jessel,  M.R.,  in  Wallis  v.  Smith,  21  Ch.  D.  243,  257. 

(m)  Hatton  v.  Harris,  [1892]  A.  C.  547. 

(n)  Pulteney  v.  Warren,  6  Ves.  92 ;  Grant  v.  Grant,  3  Enss.  598. 

(o)  Clark  v.  Lord  Abingdon,  17  Ves.  106. 

(p)  1  Domat,  B.  1,  tit.  1,  §  4,  art.  18,  pp.  50,  51. 

(g)  Domat,  B.  1,  tit.  1,  §  4,  art.  19,  p.  51;  Dig.  Lib.  45,  tit.  1,  f.  135,  §  2; 
id.  1.  122;  Pothier,  Oblig.  u.  345,  349,  350. 


552  EQUITY    JURISPRUDENCE.  [CH.    XXXIII. 

law  treated  altogether,  as  in  reason  and  justice  they  ought  to  be,  as 
a  mere  security  for  the  performance  of  the  principal  obligation  (r). 

§  1318.  But  we  are  carefully  to  distinguish  between  cases  of 
penalties  strictly  so  called,  and  cases  of  liquidated  damages.  The 
latter  properly  occur,  when  the  parties  have  agreed  that,  in  case  one 
party  shall  do  a  stipulated  act,  or  omit  to  do  it,  the  other  party  shall 
receive  a  certain  sum,  as  the  just,  appropriate,  and  conventional 
amount  of  the  damages  sustained  by  such  act  or  omission.  In  cases 
of  this  sort,  especially  if  the  damage  is  uncertain  in  amount  or  difficult 
in  assessment,  courts  of  equity  will  not  interfere  to  grant  relief;  but 
will  deem  the  parties  entitled  to  fix  their  own  measure  of  damages; 
provided  always,  that  the  damages  do  not  assume  the  character  of 
gross  extravagance,  or  of  wanton  and  unreasonable  disproportion  to 
the  nature  or  extent  of  the  injury.  But,  on  the  other  hand,  courts 
of  equity  will  not  suffer  their  jurisdiction  to  be  evaded  by  the 
fact,  that  the  parties  have  called  a  sum  damages,  which  is,  in  fact 
and  in  intent,  a  penalty;  or  because  they  have  designedly  used 
language  and  inserted  provisions,  which  are  in  their  nature  penal,  and 
yet  have  endeavoured  to  cover  up  their  objects  under  other  disguises. 
The  principal  difficulty  in  cases  of  this  sort  is  to  ascertain  when  the 
sum  stated  is  in  fact  designed  to  be  nomine  pcence,  and  when  it  is 
properly  designed  as  liquidated  damages  (s). 

§  1319.  In  the  next  place,  in  regard  to  cases  of  forfeitures. 
Eelying  upon  two  cases  in  Vernon,  a  book  long  since  acknowledged 
to  be  unreliable,  the  learned  author  mad©  the  unqualified  statement 
that  it  was  a  universal  rule  in  equity,  never  to  enforce  either  a 
penalty  or  a  forfeiture.  Even  in  his  day  the  latter  position  was 
unsustainable  (<). 

§  1320.  But  there  seems  to  be  a  distinction  taken,  in  equity, 
between  penalties  and  forfeitures.  In  the  former,  relief  is  always 
given,  if  compensation  can  be  made ;  for  it  is  deemed  a  mere 
security  (-m).  In  the  latter,  although  compensation  can  be  made,  relief 
is  not  always  given.  It  is  true,  that  the  rule  has  been  often  laid  down, 
and  was  formerly  so  held,  that,  in  all  cases  of  penalties  and  forfeitures 
(at  least  upon  a  condition  subsequent),  courts  of  equity  will  relieve 
against  the  breach  of  the  condition  and  the  forfeiture,  if  compensation 
could  be  made,  even  although  the  act  of  omission  was  voluntary. 
The  same  doctrine  was  formerly  applied  in  many  cases  of  conditions 
precedent,  where  the  parties  could  be  put  in  the  same  situation  as  if 
they  had  been  strictly  performed  (a;). 

(r)  Pothier,  Oblig.  n.  341,  342,  845. 

(s)  Clydebank  Engineering  and  Shipbuilding  Co.  v.  Yzquierdo  y  Castenada, 
[1906]  A.  C.  6;  Webster  v.  Bosanquet,  [1912]  A.  C.  394;  Dunlop  Pneumatic  Tyre 
Go.  V.  New  Garage  and  Motor  Co.,  [1915]  A.  C.  79. 

(t)  Ex  parte  Hodgson,  19  Ves.  206;  Mackintosh  v.  Pogose,  [1896]  1  Ch.  505. 

M  Ante,  §  1314.  (x)  A7ite,  §  1315. 


§    1318—1323.]  PENALTIES    AND    FORFEITURES.  553 

§  1321.  But  the  doctrine  at  present  maintained  seems  far  more 
narrow.  It  is  admitted,  indeed,  that,  where  the  condition  of  for- 
feiture is  merely  a  security  for  the  non-payment  of  money  (such  as 
a  right  of  re-entry  upon  non-payment  of  rent),  there  it  is  to  be 
treated  as  a  mere  security,  and  in  the  nature  of  a  penalty,  and  is 
accordingly  relievable  (y).  But,  if  the  forfeiture  arises  from  the  breach 
of  conditions  or  covenants  of  a  collateral  nature;  as,  for'  example, 
of  a  condition  against  voluntary  waste  or  of  a  covenant  to  repair; 
there,  although  compensation  might  be  ascertained,  yet  it  has  been 
held  that  courts  of  equity  ought  not  to  relieve,  but  should  leave  the 
parties  to  their  remedy  at  law  (z). 

§  1322.  It  is  not,  perhaps,  very  easy  to  see  the  grounds  of  this 
distinction  between  these  two  classes  of  cases.  It  is  rather  stating 
the  distinction  than  the  reason  of  it,  to  assert,  that,  in  the  one  case, 
the  amount  of  damages  by  the  non-payment  of  the  rent  is  certain 
and  fixed;  in  the  other  case,  the  damages  are  uncertain  and 
unliquidated.  But,  in  the  case  of  a  penalty,  such  a  distinction  is 
wholly  repudiated;  because  the  penalty  is  treated  as  a  security.  The 
forfeiture  is  also  treated  as  a  security,  in  cases  of  non-payment  of  rent. 
And  in  other  cases  of  covenant,  if  the  damages  are  capable  of  being 
ascertained,  aaid  will,  in  a  legal  and  equitable  sense,  be  an  adequate 
conapensation,  the  reason  is  not  very  clear  why,  under  -such  circum- 
stances, the  forfeiture  may  not  be  equally  treated  as  a  security  for 
such  damages.  The  most  probable  ground  for  the  distinction  is,  what 
has  been  judiciously  hinted  at,  that  it  is  a  dangerous  jurisdiction ; 
that  very  little  information  upon  it  can  be  collected  from  the  ancient 
cases,  and  scarcely  any  from  those  in  modern  times ;  that  it  was 
originally  adopted  in  cases  of  penalties  and  forfeiture,  for  the  breach 
of  pecuniary  covenants  and  conditions,  upon  unsound  principles;  and 
therefore,  that  it  ought  not  to  be  extended,  as  it  rarely  works  real 
compensation,  or  places  the  parties  upon  an  equality  and  mutuality 
of  rights  and  remedies  (a).  It  has  been  further  insisted,  that  the 
authorities  do  not  bear  out  the  proposition,  that  courts  of  equity  wilL 
in  cases  of  forfeiture,  for  the  breach  of  any  covenant,  give  relief  upon 
the  principle  of  compensation  (&,). 

§  1323.  Indeed,  the  doctrine  seems  now  to  be  asserted  that,  in  all 
cases  of  forfeiture  for  the  breach  of  any  covenant,  other  than  a  cove- 
nant to  pay  rent,  no  relief  ought  to  be  granted  in  equity,  unless 
upon  the  ground  of  accident,  mistake,  fraud,  or  surprise,  although  the 

(y)  Ante,  §  1315. 

(z)  Peachy  v.  Duke  of  Somerset,  1  Stra.  447 ;  Nokes  v.  Gibbon,  3  Drew.  681. 

(a)  See  the  opinions  expressed  by  Lord  Bldon,  in  Wadman  v.  Galcraft,  10  Ves 
67;  Hill  V.  Barclay,  16  Ves.  403,  405;  s.c.  18  Ves.  58  to  64;  Reynolds  v.  Pitt,  19 
Ves.  140,  141;  Ex  parte  Vaughan,  1  Turn.  &  Russ.  434.  Mr.  Baron  Wood's  opinion 
in  Bracebridge  v.  Buckley,  2  Price,  200,  contains  the  reasons  for  the  opposite  doctrine, 
which  are  well  worthy  of  consideration. 

(6)  White  V.  Warner,  2  Meriv.  459. 


554  EQUITY    JURISPRUDENCE.  [CH.    XXXIII. 

breach  is  capable  of  a  just  compensation  (c).  And  the  same  rule  is 
applied  to  cases  where  there  is  not  only  a  clause  for  re-entry,  in  case 
of  non-payment  of  rent,  but  also  a  proviso  that,  if  the  rent  is  not  duly 
paid,  the  lease  shall  be  void;  for  the  construction  put  in  equity  upon 
this  latter  clause  is  that  it  is  a  mere  security  for  the  payment  of  the 
rent  (d).  Indeed,  a  strong  inclination  has  been  exhibited,  even  in  the 
courts  of  law,  to  construe  such  a  proviso,  to  make  the  .lease  voidable, 
and  not  absolutely  void,  so  as  to  make  any  subsequent  receipt  of 
rent,  or  other  act  affirming  the  lease,  to  be  a  confirmation  thereof  (e). 

§  1324.  Be  this  as  it  may,  it  is  clearly  established,  that  courts  of 
equity  will  not  interfere,  in  cases  of  forfeiture  for  the  breach  of 
covenants  and  conditions,  where  there  cannot  be  any  just  compensa- 
tion decreed  for  the  breach.  Thus,  for  example,  in  the  case  of  a 
forfeiture  for  the  breach  of  a  covenant,  not  to  assign  a  lease  without 
licence,  or  to  keep  leasehold  premises  insured,  or  to  renew  a  lease 
within  a  given  time,  no  relief  could  until  lately  have  been  had;  for 
they  admit  of  no  just  compensation  or  clear  estimate  of  damages  (/). 

§  1324a..  The  power  of  courts  of  equity  to  relieve  lessees  from 
forfeiture  for  breaches  of  covenants  in  leases  was  enlarged  by  the 
22  &  23  Vict.  c.  35,  s.  4,  which  gives  the  courts  power  to  relieve 
against  forfeiture  for  breach  of  a  covenant  to  insure,  where  no  loss  or 
damage  has  happened,  and  the  breach  has  been  committed  through 
accident  or  mistake,  and  an  insurance  has  been  duly  effected  a.t  the 
time  of  application.  But  this  relief  can  only  be  given  once,  nor  can 
it  be  given  at  all  where  a  forfeiture  shall  have  been  alreadj'  waived 
out  of  court  in  favour  of  the  person  seeking  the  relief. 

§  1324b.  Further,  by  the  Conveyancing  Act,  1881,  s.  14,  the  rights 
of  re-entry  or  forfeiture  for  breaches  of  covenant  are  limited.  For  it 
is  provided  by  that  Act  that,  previously  to  enforcing  these  rights  by 
action  or  otherwise,  the  lessor  must  serve  on  the  lessee  a  notice 
specifying  the  particular  breach  complained  of,  and  if  the  breach  is 
capable  of  remedy,  requiring  the  lessee  to  remedy  the  breach,  and,  in 
any  case,  requiring  the  lessee  to  make  compensation  in  money.  If 
the  lessee  either  remedies  the  breach,  or  makes  compensation  in 
money,  no  right  of  re-entry  or  forfeiture  will  arise.  Further,  if  the 
lessor  proceeds  to  enforce  his  right  of  re-entry  or  forfeiture  by  action 
or  otherwise,  the  lessee  may  apply  to  the  court  for  relief,  which  the 
court  may,  having  regard  to  all  the  circumstances,  grant  or  refuse 
at  its  discretion.  But  the  Act  excludes  from  its  operation :  (1) 
Covenants  or  conditions  against  the  assigning,  underletting,  parting 
with  the  possession  or  disposing  of  the  land  leased.     (2)  In  case  of 

(c)  Barrow  v.  Isaacs  .f  Son.  [1891]  1  Q.  B.  417. 

(d)  Bowser  v.  Colby,  1  Hare,  109. 

(e)  Rede  v.  Farr,  6  M.  &  S.  121;  Doe  d.  Bryant  v.  Bancks,  4  B.  &  AH.  401; 
Arnsby  v.   Woodward,  6  B.  &  C.  519. 

(/)  See  Barrow  v.  Isaacs  .f  Son,  [1891]  1  Q.  B.  417. 


§  1324 — 1325a.]  penalties  and  foefeitures.  555 

a  mining  lease,  covenants  or  conditions  for  allowing  the  lessor  to 
have  access  to  the  books,  or  to  inspect  the  mine.  (3)  And  as  modified 
by  section  1  of  the  Conveyancing  Act,  1892,  postpones  the  right  of 
the  landlord  for  one  year  the  operation  of  a  condition  for  forfeiture 
on  the  bankruptcy  of  the  lessee  (including  the  liquidation  of  a  trading 
company  {g) ),  or  the  taking  of  his  interest  in  execution.  And  by 
section  4  of  the  la.ter  statute  the  Court  may  relieve  an  underlessee 
from  a  forfeiture  incurred  by  the  act  of  his  landlord.  Each  case  is  to 
be  considered  in  regard  to  its  own  particular  facts,  and  apart  from 
what  has  been  decided  in  other  cases  (h).  The  object  of  the  statute 
is  not  to  destroy  the  effect  of  a  contract,  and  relief  will  be  refused 
where  there  has  been  a  wilful  or  persistent  neglect  to  observe  the 
terms  of  the  covenant  (i). 

§  1325.  It  is  upon  grounds  somewhat  similar,  aided  also  by  con- 
siderations of  public  policy,  and  the  necessity  of  a  prompt  performance, 
in  order  to  accomplish  public  or  corporate  objects,  that  courts  of 
equity,  in  cases  of  the  non-compliance  by  shareholders  with  the  terms 
of  payment  of  their  instalments  of  shares  at  the  times  prescribed,  by 
which  a  forfeiture  of  their  shares  is  incurred  under  the  by-laws  of  the 
institution,  have  refused  to  interfere  by  granting  relief  against  such 
forfeiture  (fc).  The  same  rule  is,  for  the  same  reasons,  applied  to 
cases  of  subscription  to  Government  loans,  where  the  shares  of  the 
stock  are  agreed  to  be  forfeited  by  the  want  of  a  punctual  compliance 
with  the  terms  of  the  loan,  as  to  the  time,  and  mode,  and  place  of 
payment  (I).  "Where  a  power  to  forfeit  exists  the  terms  of  the  power 
must  be  strictly  observed  (m),  but  irregularities  may  be  waived  (n). 

§  1325a..  And  the  same  rule  applies  to  contracts  generally.  But 
where  the  party  (or  his  agent),  who  is  entitled  to  the  benefit  of  the 
forfeiture,  has  waived  such  benefit,  and  treated  the  contract  as  still 
subsisting  for  some  purposes,  he  will  not  be  allowed  to  insist  upon 
the  forfeiture  for  any  purpose.  As,  where  a  life-policy  was  subject  to 
a  condition  making  it  void  if  the  assured  went  beyond  the  limits  of 
Europe,  without  licence;  and  an  assignee  of  the  policy,  on  paying  the 
premium  to  a  local  agent  of  the  company,  at  the  place  where  the 
insurance  had  been  effected,  informed  him  that  the  assured  was 
resident  in  Canada,  but  the  agent  stated  that  this  would  not  avoid  the 

(g)  Horsey  Estate  Co.  v.  Steiger,  [1899]  2  Q.  B.  79. 

(h)  Rose  v.  Spicer,  [1911]  2  K.  B.  234 ;  s.c.  nom.  Rose  v.  Hyman,  [1912]  A.  0. 
623. 

(i)  Eastern  Telegraph  Co.  v.  Dent,  [1899]  1  Q.  B.  835;  Matthews  v.  Smallwood, 
[1910]  1  Ch.  777;  Greville  v.  Parker,  [1910]  A.  C.  335. 

m  Sparks  v.  Liverpool  Water  Works,  13  Ves.  428.  See  Sudlow  v.  Dutch  Rhenish 
Railway,  21  Beav.  43. 

(l)  Sparks  v.  Liverpool  Water  Works,  13  Ves.  428. 

(to)  Clarke  v.  Hart,  6  H.  L.  C.  633;  Garden  Gully  United  Quartz  Mining  Co.  v. 
McLister,  1  App.  Cas.  89. 

(n)  Rule  V.  Jewell,  18  Ch.  T>.  660;  Palmer  v.  Moore,  [1900]  A.  C.  293;  Jones  v 
North  Vancouver  Land  and  Improvement  Co.,  [1910]  A.  0.  317. 


556  EQUITY    JURISPRUDENCE.  [CH.    XXXIII. 

policy,  and  received  the  premiums  until  the  assured  died;  it  was  held 
that  the  compajiy  was  precluded  from  insisting  on  the  forfeiture  (o). 

§  1326.  Where  any  penalty  or  forfeiture  is  imposed  by  statute 
upon  the  doing  or  omission  of  a  certain  act,  there  courts  of  equity  will 
not  interfere  to  mitigate  the  penalty  or  forfeiture,  if  incurred,  for  it 
would  be  in  contravention  of  the  direct  expression  of  the  legislative- 
will  (pi).  The  same  principle  is  generally  (perhaps  not  universally) 
applied  to  cases  of  forfeiture  founded  upon  the  customs  of  manors,  and 
the  general  customs  of  certain  kinds  of  estates,  such  as  copyholds ;  for, 
in  all  these  cases,  the  forfeiture  is  treated  as  properly  founded  upon 
some  positive  law,  or  some  customary  regulations,  which  had  their 
origin  in  sound  public  policy,  and  ought  to  be  enforced  for  the  general 
benefit  (g). 

(o)  Wing  v.  Harvey,  5  Be  G.  M.  &  G.  265. 

(p)  Curtis  V.  Perry,  6  Ves.  739;  Thompson  v.  Leake,  1  Mad.  39. 

(g)  Peachy  v.  Duke  of  Somerset,  1  Str.  447,  452;  s.c.  Prec.  Ch.  568,  570,  674. 
But  see  Nash  v.  Earl  of  Derby,  2  Vern.  537,  and  Mr.  Eaithby's  note  (1);  Thomas  v. 
Porter,  1  Ch.  C.  95 ;  Hill  v.  Barclay,  18  Ves.  64. 


§  1326—1329.]  INFANTS.  557 


CHAPTER   XXXIV. 


INFANTS. 

§  1327.  We  shall  next  proceed  to  the  consideration  of  another  portion 
of  the  former  exclusive  jurisdiction  of  courts  of  equity,  partly  arising 
from  the  peculiar  relation  and  personal  character  of  the  parties,  who 
are  the  proper  objects  of  it,  ajid  partly  arising  from  a  mixture  of  public 
and  private  trusts,  of  a  large  and  interesting  nature.  The  jurisdiction 
here  alluded  to,  is  that  which  is  exercised  over  the  persons  and  property 
of  infants,  idiots,  lunatics,  and  married  women. 

§  1328.  And,  in  the  first  place,  as  to  the  jurisdiction  over  the 
persons  and  property  of  Infants.  The  origin  of  this,  jurisdiction  in 
chancery  (a)  is  very  obscure,  and  has  been  a  matter  of  much  judicial 
discussion  (b).  The  common  manner  of  accounting  for  it  has  been 
thought  by  a  learned  writer  to  be  quite  unsatisfactory  (c).  It  is  that 
the  king  is  bound  by  the  law  of  common  right  to  defend  his  subjects, 
their  goods,  chattels,  lands,  and  tenements ;  and  therefore,  in  the  law, 
every  royal  subject  is  taken  into  the  king's  protection.  For  which 
reason  an  idiot  or  lunatic,  who  cannot  defend  or  govern  himself,  or 
order  his  lands,  tenements,  goods,  or  chattels,  the  king,  of  right,  as 
parens  patriee,  ought  to  have  in  his  custody,  and  rule  him  and  them  (d). 
And  for  the  same  reason,  the  king,  as  parens  patrix,  ought  to  have  the 
care  of  the  persons  and  property  of  infants,  where  they  have  no  other 
guardian  of  either  (e). 

§  1329.  The  objection  urged  against  this  reasoning  is,  that  it  does 
not  sufficiently  account  for  the  state  of  the  former  jurisdiction;  for 
there  was  a  marked  distinction  between  the  jurisdiction  in  cases  of 
infancy,  and  that  in  cases  of  lunacy  and  idiocy.  The  former  was  exer- 
cised by  the  chancellor,  in  the  Court  of  Chancery,  as  a  part  of  the 
general  delegation  of  the  authority  of  the  crovm,  virtute  officii,  without 
any  special  warrant;  whereas  the  latter  was  exercised  by  him  by  a 
separate  commission  under  the  sign-manual  of  the  king,  and  not  other- 
wise (/).     It  is  not  safe  or  correct,  therefore,  to  reason  from  one  to  the 

(a)  3  Black.  Comm.  427. 

(6)  Wellesley  v.   Wellesley,  2  Bligh  N.  S.  136. 

(c)  Hargrave's  note  (70)  to  Co.  Litt.  89  a,  §  16. 

(d)  Ktz.  N.  B.  232;  Eyre  v.  Countess  of  Shaftesbury,  2  P.  Will.  118;  Beverley's 
Case,  4  Co.  123,  124. 

(e)  Eyre  v.  Countess  of  Shaftesbury,  2  P.  Will.  118,  119;  3  Black.  Comm.  427. 
(/)  Co.  Litt.  89  a,  Hargrave's  note  (70),  §  15;  Sheldon  v.  Fortescue  Aland,  3  P. 

Will.  104,  107,  and  Mr.  Cox's  note  (A) ;  Sherwood  v.  Sanderson,  19  Vea.  285. 


558  EQUITY    JURISPRUDENCE.  [CH.    XXXIV. 

other,  either  as  to  the  nature  of  the  jurisdiction  or  as  to  the  practice 
under  it  (gr). 

§  1330.  An  attempt  has  also  been  made  to  assign  a  different  origin 
to  the  jurisdiction,  and  to  sustain  it,  by  considering  guardianship  as  in 
the  nature  of  a  trust;  and  that,  therefore,  the  jurisdiction  has  a  broad 
and  general  foundation,  since  trusts  are  the  peculiar  objects  of  equity 
jurisdiction  (h).  But  this  has  been  thought  to  be  an  overstrained 
refinement;  for,  although  guardianship  may  properly  be  denominated 
a  trust,  in  the  common  acceptation  of  the  terra,  yet  it  is  not  so  in  the 
technical  sense  in  which  the  term  is  used  by  lawyers,  or  in  the  Court 
of  Chancery.  In  the  latter,  trusts  are  invariably  applied  to  property 
(and  especially  to  real  property)  and  not  to  persons  (i).  It  may  be 
added,  that  guardianship,  considered  as  a  trust,  would  equally  be 
within  the  jurisdiction  of  all  the  courts  of  equity ;  whereas  it  is  limited 
to  the  chancellor,  sitting  in  chancery  (fc). 

§  1331.  An  attempt  has  also  been  made  to  derive  the  jurisdiction 
from  the  writ  of  Bavishment  of  Ward,  and  the  writ  De  Recto  de 
Custodia  at  the  common  law,  but  with  as  little  success.  For,  indepen- 
dently of  the  consideration,  that  these  writs  were  returnable  into  a 
court  of  common  law,  it  is  not  easy  to  see  how  a  jurisdiction,  to  decide 
between  contending  competitors  for  the  right  of  guardianship,  can 
establish  a  general  authority,  in  the  Court  of  Chancery,  to  appoint  a 
guardian  in  all  cases  where  one  happens  to  be  wanting  (l). 

§  1332.  It  has  been  further  suggested,  that  the  appointment  of 
guardians  in  cases  where  the  infants  had  none,  belonged  to  the  chan- 
cellor, in  the  Court  of  Chancery,  before  the  erection  of  the  Court  of 
Wards;  and  that,  upon  the  abolition  of  that  court,  it  reverted  to  the 
king,  in  his  Court  of  Chancery,  as  the  general  protector  of  all  the 
infants  in  the  kingdom.  But  this  (it  has  been  objected)  is  rather  an 
assertion,  than  a  proof,  of  the  jurisdiction ;  for  it  is  difficult  to  trace  it 
back  to  any  such  ancient  period.  The  earliest  instance  which  has  been 
found,  of  the  actual  exercise  of  the  jurisdiction  by  the  chancellor,  to 
appoint  a  guardian,  upon  petition  without  bill,  is  said  to  be  that  of 
Hampden,  in  the  year  1696.  Since  that  period,  indeed,  it  has  been 
constantly  exercised  without  its  once  being  called  in  question.  Mr. 
Hargrave  has  not  hesitated  to  say,  that,  although  the  jurisdiction  is 
now  unquestionable,  yet  it  seems  to  have  been  a  usurpation,  for  which 
the  best  excuse  was,  that  the  case  was  not  otherwise  sufficiently  pro- 
vided for.  He  has  added,  that,  although  the  care  of  infants,  as  well  as 
of  idiots  and  lunatics,  should  be  admitted  to  belong  to  the  crown;  yet. 


(g)  Ex  parte  Whitfield,  2  Atk.  315;  Ex  parte  Phillips,  19  Ves.  122. 

(h)  See  Duke  of  Beaufort  v.  Berty,  1  P.  Will.  705 ;  post,  §  1343  to  1345. 

(t)  Co.  Litt.  89  a,  Hargrave's  note  (70),  §  17. 

(k)  Ante,  §  1328;  post,  §  §  1343,  1351. 

(!)  Co.  Litt.  89  a,  Hargrave's  note  (70),  §  16. 


§  1330—1333.]  INFANTS.  559 

that  something  further  is  necessary  to  prove  that  the  chancellor  is  the 
person  constitutionally  delegated  to  act  for  the  king  (m). 

§  1383.  Notwithstanding  the  objections  thus  urged  against  the 
legitimacy  of  the  origin  of  the  jurisdiction,  it  is  highly  probable  that  It 
has  a  just  and  rightful  foundation  in  the  prerogative  of  the  crovs'n,  flovs^- 
ing  from  its  general  power  and  duty  as  parens  patrise,  to  protect  those 
who  have  no  other  lawful  protector  (n).  It  has  been  well  said,  that  it 
will  scarcely  be  controverted,  that  in  every  civilized  state,  such  a  super- 
intendence and  protected  power  does  somewhere  exist.  If  it  is  not 
found  to  exist  elsewhere,  it  seems  to' be  a  just  inference  from  the  knoviTi 
prerogatives  of  the  crown,  as  parens  patrise,  in  analogous  cases,  to  pre- 
sume that  it  vests  in  the  crown  (o).  It  is  no  slight  confirmation  of  this 
inference,  that  it  has  been  constantly  referred  to  such  an  origin  in  all 
the  judicial  investigations  of  the  matter  (p),  as  well  as  in  the  discussions 
of  very  learned  elementary  writers  (g). 

(m)  Hargrave's  note  (70),  §  16,  Co.  Litt.  89  a,.  There  is  very  great  reason  to 
question  this  conclusion  of  the  learned  author;  nor  is  it  very  likely  that,  at  so  late  a 
period  as  1696,  a  clear  usurpation  of  an  authority  of  this  nature  should  have  been 
either  claimed  by  the  chancellor  or  tolerated  by  Parliament.  In  Pitzherbert 's  Natura 
Brevium  (p.  27,  b),  a  very  ancient  work  of  great  authority,  it  is  said,  that  "the 
king,  by  his  letters-patent,  may  make  a  general  guardian  for  an  infant,  to  answer 
for  him  in  all  actions  or  suits  brought,  or  to  be  brought,  in  all  manner  of  courts." 
It  is  added,  "  And  the  infant  shall  have  a  writ  in  the  chancery  to  remove  his  guar- 
dian, directed  unto  the  justices,  and  for  to  receive  another,  &o. ;  and  the  court,  at 
their  discretion,  may  remove  the  guardian,  and  appoint  another  guardian." 

(n)  The  learned  reader  is  referred  to  the  elaborate  note  of  Mr.  Hargrave  to  Co. 
Litt.  89  a,  note  (70),  §  16,  for  the  objections  to  the  jurisdiction,  which  are  there  fully 
considered;  and  also  to  the  equally  elaborate  note  of  Mr.  Fonblanqne  (2  Fonbl.  Bq. 
B.  2,  Pt.  2,  ch.  2,  §  1,  note  a),  for  the  answers  to  those  objections.  The  view  of  the 
matter  taken  in  the  text  is  almost  exclusively  derived  from  the  note  of  Mr.  Fou- 
blanque.  Lord  Eldon,  in  De  Manneville  v.  De  Manneville,  10  Ves.  63,  64,  after 
referring  to  the  notes  of  Mr.  Hargrave  and  Mr.  Ponblanque,  stated  that  "the  latter 
had  stated  the  principle  very  correctly." 

(o)  See  Beverley's  Case,  i  Co.  123,  124;  Brae.  Lib.  3,  cap.  9;  Eyre  v.  Countess 
of  Shaftesbury,  2  P.  Will.  118,  123;  Stuart  v.  Marquis  of  Bute,  9  H.  L.  C.  440;  In 
re  Bourgeoise,  41  Ch.  D.  310;  also  1  Mad.  Pr.  Ch.  262,  263. 

(p)  Eyre  v.  Countess  of  Shaftesbury,  2  P.  Will.  118,  123;  Butler  v.  Freeman, 
Ambler,  302;  Hughes  v.  Science,  2  Eq.  Abr.  766;  De  Manneville  v.  De  Manneville, 
10  Ves.  63,  64. 

(g)  3  Black.  Comm.  427;  Pitz.  Nat.  Brev.  27;  2  Fonbl.  Eq.  B.  2,  Pt.  2,  ch.  2, 
§  1,  note  (a);  1  Mad.  Pr.  Ch.  262,  263.  In  Butler  v.  Freeman,  Ambler,  302,  Lord 
Hardwicke  is  reported  to  have  said ,  with  reference  to  this  subject  :  ' '  This  court  does 
not  act  on  the  footing  of  guardianship  or  wardship.  The  latter  is  totally  taken  away 
by  the  statute  of  Charles  II.  And  without  claiming  the  former,  and  disclaiming  the 
latter,  it  has  a  general  right  delegated  by  the  crown  as  pater  -patrice  to  interfere  in 
particular  cases  for  the  benefit  of  such  who  are  incapable  to  protect  themselves."  in 
the  case  of  Hughes  v.  Science,  cited  in  Ambler,  302,  Mr.  Blunt's  note  (2),  the  same 
learned  judge  said  :  "  The  law  of  the  country  has  taken  great  care  of  infants,  both 
their  persons  and  estates,  and  particularly  to  prevent  marriages  to  their  disparage- 
ment. For  that  purpose  it  had  assigned  them  guardians ;  and  if  a  stranger  married 
without  the  guardian's  consent,  it  was  considered  a  ravishment  of  ward,  and  the  party 
was  deemed  punishable  by  fine  and  imprisonment;  and  so  it  was,  if  the  guardian 
himself  married  the  infant  to  another  to  its  disparagement.  And  the  court  has 
originally  exercised  a  superintendent  jurisdiction  over  guardians  in  behalf  of  infants, 
to  prevent  abuses,  either  in  their  persons  or  estates,  as  well  as  in  behalf  of  the  crown, 


560  EQUITY  JURISPRUDENCE.  [CH.  XXXIV. 

§  1334.  Assuming,  then,  that  the  general  care  and  superintendence 
of  infants  did  originally  vest  in  the  crown,  when  they  had  no  other 
guardian,  the  question  by  whom,  and  in  what  manner,  the  prerogative 
should  be  exercised,  would  not  seem  open  to  much  controversy.  Par- 
taking, as  it  does,  more  of  the  nature  of  a  judicial  administration  of 
rights  and  duties  in  foro  conscientise,  than  of  a  strict  executive  authority, 
it  would  naturally  follow  ea  ratione,  that  it  should  be  exercised  in  the 
Court  of  Chancery,  as  a  branch  of  the  general  jurisdiction  originally 
confided  to  it.  Accordingly,  the  doctrine  now  commonly  maintained  is, 
that  the  general  superintendence  and  protective  jurisdiction  of  the 
Court  of  Chancery  over  the  persons  and  property  of  infants  is  a  delega- 
tion of  the  rights  and  duty  of  the  crown ;  that  it  belonged  to  that  court, 
and  was  exercised  by  it  from  its  first  establishment;  and  that  this 
general  jurisdiction  was  not  even  suspended  by  the  statute  of  Henry 
VIII.,  erecting  the  Court  of  Wards  and  Liveries  (r). 

§  1335.  The  jurisdiction  over  idiots  and  lunatics  was  distinguishable 
from  that  over  infants,  in  several  respects.  The  former  was  a  personal 
trust  in  the  Lord  Chancellor,  and  especially  delegated  to  him  under 
the  sign-manual  of  the  king ;  and  from  his  decree  no  appeal  lay,  except 
to  the  king  in  council  (s).  On  the  other  hand,  the  latter  belonged  to 
the  Court  of  Chancery,  and  it  might  be  exercised  as  well  by  the  Master 
of  the  Eolls  as  by  the  Lord  Chancellor,  and  therefore  an  appeal  lay 
from  the  decision  of  the  Court  of  Chancery,  in  cases  of  infants,  to  the 
House  of  Lords  (t). 

§  1336.  It  may  be  asked,  why,  if  no  particular  warrant  was  neces- 
sary to  enable  the  Court  of  Chancery  to  exercise  its  protective  power 
and  care  over  infants,  a  separate  commission  under  the  sign-manual 
should  be  necessary  to  confer  on  the  chancellor  the  jurisdiction  over 

and  inferior  lords,  who  had  formerly  a  great  interest  in  the  wardship  of  infants. 
Afterwards,  indeed,  the  Court  of  Wards  being  created,  took  the  jurisdiction  out  of 
chancery  for  a  tiine.  But,  as  soon  as  that  court  came  to  be  dissolved,  the  jurisdic- 
tion devolved  again  upon  the  court,  and  infants  have  ever  since  been  considered  as 
under  the  immediate  care  of  chancery.  Whenever  a.  suit  is  commenced  here  on  their 
behalf,  and  even  without  suit,  the  court  every  day  appoints  guardians  on  petition;  and 
the  marriage  of  an  infant  to  her  guardian  or  any  other  without  the  consent  of  the 
court,  where  a  suit  is  depending  here  in  behalf  of  the  infant,  has  been  always  treated 
and  punished  as  a  contempt.  See  Serj.  Hill's  MSS.  vol.  6,  p.  8."  s.c.  cited  at  large 
in  Macpherson  on  Infants,  Appendix  I.  See  also  Lord  Bldon'a  remarks  in  De  Manne- 
ville  V.  De  Mannemlle,  10  Ves.  63,  64. 

(r)  2  Ponbl.  Bq.  B.  2,  Pt.  2,  ch.  2,  §  1,  note  (a);  Morgan  v.  Dillon,  9  Mod.  139, 
140;  De  Manneville  v.  De  Manneville,  10  Ves.  52;  Wellesley  v.  Duke  of  Beaufort, 
2  Russ. ;  Wellesley  v.  Wellesley,  2  Bligh  N.  S.  124.  In  the  case  last  cited  Lord 
Eedesdale  adverted  to  the  custom  of  London,  admitted  in  the  courts  of  common  law 
to  be  valid,  under  which  they  made  orders  relative  to  infants  of  freemen,  and  enforced 
them  by  committing  parties  disobeying  to  Newgate,  as  a  jurisdiction  delegated  by  the 
crown  anterior  to  the  statute  of  Henry  VIII. 

(s)  Sheldon  v.  Fortescue  Aland,  3  P.  Will.  104,  107,  Mr.  Cox's  note  (A);  Boch- 
fort  V.  Earl  of  Ely,  6  Bro.  Pari.  C.  329;  Sherwood  v.  Sanderson,  19  Ves.  285;  Ex 
parte  Phillips,  19  Ves.  122,  123. 

(t)  Oxenden  v.  Compton,  2  Ves.  Jun.  71,  72. 


§   1334—1337.]  INFANTS.  561 

idiots  and  lunatics,  since  that  also  has  been  referred  to  the  protecting 
prerogative  of  the  crown  as  parens  patriae.  The  answer  which  has 
been  given  (and  perhaps  it  is  a  true  one)  is,  that  in  point  of  fact,  the 
custody  of  the  persons  and  property  of  idiots  and  lunatics,  or  at  least 
of  those  who  held  lands,  was  not  anciently  in  the  crown,  but  in  the 
lord  of  the  fee.  The  statut-e  (De  Prerogativd  Regis)  of  17  Edw.  2,  c.  9 
(or,  as  Lord  Coke  and  others  suppose,  some  earlier  statute)  (v),  gave  to 
the  king  the  custody  of  idiots,  and  also  vested  in  him  the  profits  of  the 
idiot's  lands  during  his  life  (x).  By  this  means  the  crown  acquired  a 
beneficial  interest  in  the  lands ;  and  as  a  special  warrant  from  the  crown 
is,  in  all  cases,  necessary  to  any  grant  of  its  interest,  t*he  separate  com- 
mission, which  gives  the  Lord  Chancellor  jurisdiction  over  the  persons 
and  property  of  idiots,  may  be  referred  to  this  consideration  (y).  With 
respect  to  lunatics,  the  statute  of  17  Edw.  2,  c.  10,  enacted,  that  the 
king  should  provide  that  their  lands  and  tenements  should  be  kept 
without  waste.  It  conferred  merely  a  power  which  is  not  to  be  con- 
sidered as  included  within  the  general  jurisdiction,  antecedently  conferred 
on  the  Court  of  Chancery ;  and  therefore,  a  separate  and  special  com- 
mission became  necessary  for  the  delegation  of  this  new  power  (z).  There 
is,  under  the  statute,  a  difference  between  the  case  of  an  idiot,  and  that 
of  a  lunatic,  in  this  respect.  In  the  case  of  a  lunatic,  the  king  is  a 
mere  trustee;  in  the  case  of  an  idiot,  he  has  a  beneficial  interest  (a). 

§  1337.  But,  whatever  may  be  the  true  origin  of  the  jurisdiction 
of  the  Court  of  Chancery  over  the  persons  and  property  of  infants,  it 
is  now  conceded,  on  all  sides,  to  be  firmly  established,  and  beyond  the 
reach  of  controversy.  Indeed,  it  is  a  settled  maxim,  that  the  king  is 
the  universal  guardian  to  infants,  and  ought,  in  the  Court  of  Chancery, 

(a)  See  2  Co.  Inst.  14;  2  Beeve's  Hist.  ch.  12,  pp.  307,  308;  1  Black.  Comm. 
302,  303;  Fitz.  N.  Brev.  232. 

(x)  Lord  Coke,  in  2  Inst.  14,  speaking  of  the  provision  in  Magna  Cliarta,  ch.  4, 
says  :  "  At  the  making  of  this  statute  the  king  had  not  any  prerogative  in  the  custody 
of  the  lands  of  idiots  during  the  life  of  the  idiots ;  for  if  he  had,  this  act  would  have 
provided  against  waste,  &c.,  committed  by  the  committeg  or  assignee  of  the  king,  to 
be  done  in  his  possessions,  as  well  as  in  the  possessions  of  wards.  But  at  this  time 
the  guardianship  of  idiots,  &c. ,  was  to  the  lords  and  others,  according  to  the  course 
of  the  common  law."  In  Beverley's  Case,  4  Co.  Eep.  126,  it  is  expressly  declared, 
that  the  statute  of  17  Edw.  2.  c.  9,  is  but  an  affirmance  or  declaration  of  the  common 
law.  So  Mr.  Justice  Blackstone,  in  his  Commentaries,  1  Black.  Comm.  303,  treats 
it.  Lord  Coke  thinks  that  this  prerogative  was  given  to  the  crown  by  some  statute 
not  now  extant,  in  the  reign  of  Edward  I.,  after  Bracton  wrote  his  work,  and  before 
that  of  Britton.  '2  Inst.  14.  See  also  Lord  Northington 's  opinion  in  Ex  parte  Grim- 
stone,  Ambler,  707. 

(y)  De  Manneville  v.  De  Mannemlle,  10  Ves.  63,  64;  1  Black.  Comm.  303,  304. 

(z)  Lord  Loughborough,  in  Oxenden  v.  Lord  Compton,  2  Ves.  Jun.  71,  72;  s.c. 
4  Bro.  C.  C.  23,  considered  the  statute  of  17  Edw.  2.  c.  10,  as  merely  in  affirmance 
of  the  antecedent  rights  of  the  crown.  This  view  was  also  entertained  by  Lord 
Hardwioke,  Corporation  of  Burford  v.  Lenthall,  2  Atk.  553;  In  re  Heli,  3  Atk.  635; 
by  Lord  Apsley,  Ex  parte  Grimstone,  Ambler,  707;  and  Lord  Eldon,  De  Manneville 
V.  De  Manneville,  10  Ves.  63. 

(a)  In  re  Fitzgerald,  2  Sch.  &  Lefr.  436,  in  which  case  the  difference  was  fully 
expounded  by  Lord  Eedesdale. 

E.J.  36 


562  EQUITY  JURISPRUDENCE.  [CH.  XXXIV. 

to  take  care  of  their  fortunes  (b).  We  shall  now  proceed  to  the  con- 
sideration of  some  of  the  more  important  functions,  connected  with 
this  authority;  in  the  appointment  and  removal  of  guardians;  in  the 
maintenance  of  infants ;  in  the  management  and  disposition  of  the  pro- 
perty of  infants ;  and  lastly,  in  the  marriage  of  infants. 

§  1338.  In  the  first  place,  in  regard  to  the  appointment  and 
removal  of  guardians.  The  court  (c)  will  appoint  a  suitable  guardian 
to  an  infant,  where  there  is  none  other,  or  none  other  who  will,  or  can 
act,  at  least  where  the  infant  has  property;  for  if  the  infant  has  no 
property,  the  court  will  perhaps  not  interfere.  It  is  not,  however,  from 
any  want  of  jurisdiction  {d)  that  it  will  not  interfere  in  such  a  case,  but 
from  the  want  of  means  to  exercise  its  jurisdiction  with  effect;  because 
the  court  cannot  take  upon  itself  the  maintenance  of  all  the  children 
in  the  kingdom.  It  can  exercise  this  part  of  its  jurisdiction  usefully 
and  practically  only  where  it  has  the  means  of  doing  so ;  that  is  to  say, 
by  its  having  the  means  of  applying  property  for  the  use  and  mainten- 
ance of  the  infant  (e).  Guardians  appointed  by  the  court  are  treated 
as  officers  of  the  court,  and  are  held  responsible  accordingly  to  it  (/). 

§  1338a.  The  question  of  who  are  to  be  appointed  guardians,  is 
generally  one  of  discretion,  merely;  and  the  court  ordinarily  refers  it 
to  a  master,  especially  if  the  guardianship  be  contested  between  two 
or  more  parties,  to  appoint  guardians,  leaving  the  person  in  whose  cus- 
tody the  infant  actually  is,  to  retain  that  custody  until  the  coming  in 
of  the  master's  certificate.  And  if  there  are  testamentary  guardians, 
the  court  has  no  jurisdiction  to  interfere  except  in  cases  of  miscon- 
duct (g).  If  the  testamentary  appointment,  however,  be  one  that  con- 
templates the  residence  of  the  child  in  the  country  of  its  birth,  and  tho 
child  be  removed  to  a  residence  in  England,  it  seems  that  the  Court  of 
Chancery  in  England  may  appoint  guardians;  and  the  testamentary 
appointment  will  be  looked  at  only  as  an  expression  of  the  parent's 
preferences,  to  which  the  court  will  give  great  influence  (h). 

§  1339.  In  the  next  place,  as  to  the  removal  of  guardians.  The 
court  will  not  only  remove  guardians  appointed  by  its  own  authority, 
but  it  will  also  remove  guardians  at  the  common  law,  and  even  testa- 
mentary or  statute  guardians,  whenever  sufficient  cause  can  be  shown 
for  such  a  purpose  (i).    In  all  such  cases,  the  guardianship  is  treated 

(b)  Wellesley  v.  Duke  of  Beaufort,  2  Euss.  19. 

(c)  That  ig,  under  the  present  practice,  one  of  the  judges  of  the  Chancery  Division 
of  the  High  Court  of  Justice. 

(d)  In  re  Fynn,  2  De  G.  &  Sm.  457 ;  Stuart  v.  Marquis  of  Bute,  9  H.  L.  C.  440. 
See  In  re  Spence,  2  Phil.  247. 

(e)  Lord  Bldon,  in  Wellesley  v.  Duke  of  Beaufort,  2  Euss.  1,  21. 
(/)  Wellesley  v.  Duke  of  Beaufort,  2  Euss.  1,  20,  21;  post,  §  1351. 

(g)  In  re  Neale,  15  Beav.  250;  Coham  v.  Coham,  13  Sim.  639;  Miller  v.  Harris, 
14  Sim.  540. 

(h)  Johnstone  v.  Beattie,  10  CI.  &  P.  42;  In  re  Bourgeoise,  41  Ch.  D.  310. 

(»')  Johnstone  v.  Beattie,  10  CI.  &  P.  42 ;  Wellesley  v.  Wellesley,  2  Bligh  N.  S. 
124;  Smart  v.  SmaH,  [1892]  A.  C.  425. 


§  1338—1341.]  INFANTS.  663 

as  a  delegated  trust,  for  the  benefit  of  the  infant,  and,  if  it  is  abused, 
'or  in  danger  of  abuse,  the  court  will  interpose,  not  only  by  way  of 
remedial  justice,  but  of  preventive  justice.  Where  the  conduct  of  the 
guardian  is  less  reprehensible,  and  does  not  require  so  strong  a  measure 
as  a  removal,  the  court  will,  upon  special  application,  interfere,  and 
regulate,  and  direct  the  conduct  of  the  guardian  in  regard  to  the  custody, 
and  education,  and  maintenance  of  the  infant  (k) ;  and,  if  necessary, 
it  will  inhibit  him  from  carrying  the  infant  out  of  the  country,  and  it 
will  even  appoint  the  school  where  he  shall  be  educated  (I).  In  like 
manner,  it  will,  in  proper  cases,  require  security  to  be  given  by  the 
guardian,  if  there  is  any  danger  of  abuse  or  injury  to  his  person  or  to  his 
property  (m). 

§  1340.  The  court  will  not  only  interfere  to  remove  guardians  for 
improper  conduct,  but  it  will  also  assist  guardians  in  compelling  their 
wards  to  go  to  the  schools  selected  by  the  guardian,  as  well  as  in  obtain- 
ing the  custody  of  the  persons  of  their  wards,  when  they  are  detained 
from  them.  This  may  not  only  be  done  by  any  judge  of  the  Supreme 
Court  of  Judicature  by  a  writ  of  habeas  corpus,  but  it  may  also  be  done 
on  a  petition,  without  any  action  being  brought  in  the  court  (n). 

§  1341.  The  jurisdiction  of  the  court  extends  to  the  care  of  the 
person  of  the  infant,  so  far  as  necessary  for  his  protection  and  educa- 
tion; and  to  the  care  of  the  property  of  the  infant,  for  its  due  manage- 
ment and  preservation,  and  proper  application  for  his  maintenance  (o). 
It  is  upon  the  former  ground,  principally,  that  is  to  say,  for  the  due 
protection  and  education  of  the  infant,  that  the  court  interferes  with 
the  ordinary  rights  of  parents  as  guardians  by  nature,  or  by  nurture,  in 
regard  to  the  custody  and.  care  of  their  children  (p).  For,  although 
parents  are  entrusted  with  the  custody  of  the  persons,  and  the  education 
of  their  children,  yet  this  is  done  upon  the  natural  presumption  that 
the  children  will  be  properly  taken  care  of,  and  will  be  brought  up  with 
a  due  education  in  literature,  and  morals,  and  religion;  and  that  they 
will  be  treated  with  kindness  and  affection.  But,  whenever  the  pre- 
sumption is  removed ;  whenever  (for  example)  it  is  found,  that  a  father 
is  guilty  of  gross  ill-treatment  or  cruelty  towards  his  infant  children; 
or  that  he  is  in  constant  habits  of  drunkenness  and  blasphemy,  or  low 

(k)  Roach  v.  Garvan,  1  Ves.  Sen.  160;  In  re  McCulloch,  1  Dm.  276. 

(I)  Campbell  v.  Mackay,  2  M.  &  Cr.  31 ;  Talhot  v.  Duke  of  Shrewshury,  4  M. 
A  Or.  672. 

(m)  Foster  v.  Denny,  2  Ch.  C.  237;  Hanbury  v.  Walker,  3  Ch.  C.  58;  1  Mad.  Pr. 
Ch.  263,  264,  268,  269. 

(n)  Eyre  v.  Countess  of  Shaftesbury,  2  P.  Will.  103 ;  Ex  parte  Hopkins,  3  P. 
Will.  152,  and  Mr.  Cox's  note;  Da  Costa  v.  Mellish,  West,  300;  s.c.  2  Swanst.  533, 
537,  note. 

(o)  In  re  Spence,  2  Phil.  247. 

(p)  Mr.  Hargrave,  in  his  learned  notes,  66,  67,  §  123,  to  Co.  Litt.  88  b,  has 
brought  together  the  general  principles  and  doctrine,  applicable  to  guardianship  by 
nature,  guardianship  by  socage,  and  guardianship  by  nurture,  the  first  and  last  of 
■which  are  often  confounded,  and  used  in  a  loose  and  indeterminate  sense. 


564  EQUITY    JURISPRUDENCE.  [CH.    XXXIV. 

and  gross  debauchery ;  or  that  he  professes  atheistical  or  irreligious 
principles;  or  that  his  domestic  associations  are  such  as  tend  to  the' 
corruption  and  contamination  of  his  children;  or  that  he  otherwise  acts 
in  a  manner  injurious  to  the  morals  or  interests  of  his  children;  in  eveiy 
such  case,  the  court  will  interfere,  and  deprive  him  of  the  custody  of 
his  children,  and  appoint  a  suitable  person  to  act  as  guardian,  and  to 
take  care  of  them,  and  to  superintend  their  education  (g).  But  it  is 
only  in  cases  of  gross  misconduct  that  paternal  rights  are  interfered 
with.  As  between  husband  and  wife,  the  custody  of  the  children 
generally  belongs  to  the  husband,  and  the  latter  could  not  formerly 
alienate  his  right  to  the  custody  and  care  of  the  children  (r). 

§  1341a.  This  subject  was  much  considered  in  the  case  of  hi  re 
Agar-Ellis,  Agar-Ellis  v.  Lascclles  (s),  where  it  was  laid  down  by  the 
Court  of  Appeal,  that  a  father  has  a  legal  right  to  control,  and  direct, 
the  education  and  bringing  up  of  his  children,  until  they  attain  the  age 
of  twenty-one  years,  even  although  they  are  wards  of  court,  and  the 
court  will  not  interfere  with  him  in  the  exercise  of  his  paternal  authority, 
except  (1)  where  by  his  gross  moral  turpitude,  he  forfeits  his  rights; 
or  (2)  where  he  has,  by  his  conduct,  abdicated  his  paternal  authority; 
or  (3)  where  he  seeks  to  remove  his  children,  being  wards  of  court,  out 
of  the  jurisdiction,  without  the  consent  of  the  court. 

§  1342.  The  jurisdiction,  thus  asserted,  to  remove  infant  children 
from  the  custody  of  their  parents,  aJid  to  superintend  their  education 
and  maintenance,  is  admitted  to  be  of  extreme  delicacy,  and  of  no 
inconsiderable  embarrassment  and  responsibility.  But  it  is  neverthe- 
less a  jurisdiction  which  seems  indispensable  to  the  sound  morals,  the 
good  order,  and  the  just  protection  of  a  civilized  society.  In  a  celebrated 
case,  after  it  had  been  acted  upon  in  chancery  for  one  hundred  and 
fifty  years,  it  was  attempted  to  be  brought  into  question ;  and .  was 
resisted,  as  unfounded  in  the  true  principles  of  English  jurisprudence. 
It  was,  however,  confirmed  by  the  House  of  Lords,  with  entire 
unanimity ;  and  on  that  occasion  was  sustained  by  a  weight  of  authority 
and  reasoning  rarely  equalled  (i). 

§  1342a.  In  the  foregoing  paragraphs  the  author  had  discussed  the 
leading  principles  guiding  the  Court  of  Chancery  in  the  exercise  of  its 
inherent  jurisdiction  respecting  the  guardianship  and  custody  of  infants, 
subjects  often  confused,  but  quite  distinct.  This  jurisdiction  has  been 
transferred  to  the  Supreme  Court'  by  sections  16  and  25,  sub-section  10 

iq)  The  cases  on  this  subject  are  numerous.  Shelley  v.  Westbrooke,  Jac.  266; 
WellesUy  v.  Wellealey,  2  Bligh  N.  S.  134;  Anonymous,  2  Sim.-  N.  S.  54;  In  re 
Besant,  11  Ch.  D.  508;  Smart  v.  Smart,  [1892]  A.  C.  425;  may  be  cited  as  illustra- 
tions of  the  principles  stated  in  the  text. 

(r)  Varisittart  v.  Vansittart,  2  De  G.  &  J.  249;  Swift  v.  Swift,  4  De  G.  J.  &  S. 
710. 

(s)  In  re  Agar-Ellis,  Agar-Ellis  v.  Lascelles,  24  Ch.  D.  317. 

(t)  Wellesley  v.   Wellesley,  2  BUgh  N.  S.  124. 


§  1341a— 1350.]  inpakts.  565 

of  the  Judicature  Act,  1873  (w).  These  principles  are  still  in  force  and 
are  recognized  and  confirmed  by  a  number  of  statutes  which  have  intro- 
duced fresh  considerations  for  the  determination  of  the  question,  and 
to  this  extent  have  modified  the  judgment  of  the  court  on  a  given  state 
of  facts  {xj.  The  first  statute  is  2  &  3  Vict.  c.  56  (commonly  called 
Talfourd's  Act),  which  gave  the  wife  for  the  first  time  a  right  of  access 
to  the  child,  and  enabled  the  court  to  commit  the  custody  of  the  child, 
if  under  seven  years,  to  her  care  (y).  This  statute  was  repealed,  but  in 
terms  re-enacted,  by  the  Custody  of  Infants  Act,  1873,  36  &  37  Vict. 
c.  12,  the  main  alteration  being  that  the  custody  of  a  child  under  sixteen 
years  of  age  may  be  committed  to  the  mother,  and  provision  is  made  for 
a  right  of  access  to  the  infant  by  either  parent  by  order  of  the  court  (a). 
By  section  2  of  the  same  statute  a  provision  in  a  separation  deed  that 
a  mother  shall  have  the  custody  or  control  of  an  infant  is  legalized, 
subject  to  the  important  proviso,  that  ' '  no  court  shall  enforce  any  such 
agreement  if  the  court  shall  be  of  opinion  that  it  will  not  be  for  the 
benefit  of  the  infant  or  infants  to  give  effect  thereto  "  (a).  By  the 
Guardianship  of  Infants  Act,  1886,  49  &  50  Vict.  c.  27,  on  the  death  of 
the  father  of  an  infant,  the  mother  if  surviving  becomes  the  guardian 
of  the  child,  either  alone  when  the  father  has  not  appointed  a  guardian 
or  jointly  with  any  guardian  appointed  by  the  father.  And  the  court 
is  empowered  to  appoint  a  guardian  or  guardians  to  act  jointly  with 
the  mother  "if  it  shall  think  fit. ' '  The  mother  is  also  empowered  to 
appoint  a  guardian  to  act  after  the  death  of  herself  and  the  father  of  an 
unmarried  infant,  and  make  a  provisional  appointment,  which  requires 
the  sanction  of  the  court,  of  a  guardian  to  act  jointly  with  the  father. 
And  the  court  may  commit  the  custody  of  an  infant  to  either  parent 
with  a  right  of  access  to  either  parent  on  the  application  of  the  mother, 
"  having  regard  to  the  welfare  of  the  infant,  the  conduct  of  the  parents, 
and  to  the  wishes  as  well  of  the  mother  as  of  the  father. ' '  The  court 
may  now  by  force  of  the  Custody  of  Children  Act,  1891,  refuse  to  assist 
a  parent  who  has  ' '  abandoned  or  deserted  ' '  an  infant  or  has  otherwise 
been  "  unmindful  of  his  parental  duties,"  to  put  it  shortly,  to  recover 
the  custody  of  the  infant.  By  section  8  of  the  Children  Act,  1908,  the 
powers  of  the  court  are  further  enlarged  where  the  parent  has  been 
guilty  of  cruelty. 

§  1350.  It  would  be  a  subject  of  curious  inquiry,  to  ascertain  the 
nature  and  extent  of  the  parental  power  in  the  Roman  law,  and  also 
the  nature  and  extent  of  the  powers  and  duties  of  guardians  in  the 
same  law,  and  the  manner  of  their  appointment ;  but  it  would  lead  us 

(«).  In  rs  Goldsworthy,  2  Q.  B.  D.  75. 
(x)  See  Smart  v.  Smart,  [1892]  A.  C.  425. 
(y)  Ex  parte  Woodward,  17  Jur.  56. 
(z)  In  re  Elderton  (Infants),  26  Ch.  D.  220. 

(o)  In  re  Besant,  11  Ch.  D.  .508;  Besant  v.  Wood,  12  Ch.  D.  605;  Hart  v.  Hart, 
18  Ch.  D.  670. 


566  EQUITY    JURISPRUDENCE.  [CH.    XXXIV. 

too  far  from  the  immediate  object  of  these  Commentaries.  It  is  highly 
probable  that  the  common  law,  as  well  as  the  equity  jurisprudence  of 
England,  has  borrowed  many  of  its  doctrines  on  this  subject  from  this 
source.  Guardians  (who  were  appointed  on  the  death  of  the  father) 
were,  in  the  Boman  law,  of  two  sorts :  (1)  tutors,  who  were  guardians 
of  males  until  their  age  of  fourteen  years,  and  of  females  until  their 
age  of  twelve  years ;  and  (2)  curators,  who  were  then  appointed  their 
guardians,  and  continued  such  until  the  minors  respectively  arrived  at 
the  age  of  twenty-five  years,  which  was  the  full  majority  of  the  Eoman 
law.  Guardians  were  usually  selected  from  the  nearest  relations,  and 
might  be  nominated  by  the  father  or  mother  during  their  lifetime. 
But  they  were  required  to  be  appointed  and  confirmed  by  the  proper 
judge  or  magistrate  of  the  place  where  the  minor  resided;  and  they 
were  removable  for  personal  misconduct,  or  for  ill-treatment  of  the 
minor,  or  for  bad  management  of  his  estate.  But,  while  any  one 
remained  guardian,  he  was  bound  to  take  care  of  the  person  of  the 
minor;  to  provide  suitable  maintenance  out  of  his  estate;  to  super- 
intend his  morals  and  education;  and  to  exercise  a  prudent  manage- 
ment over  his  estate  (b).  In  many  respects,  indeed,  the  court,  in  the 
exercise  of  its  authority  over  infants,  implicitly  follows  the  very 
dictates  of  the  Eoman  code. 

§  1351.  It  might  seem,  upon  principle,  that  the  jurisdiction  of  the 
court  over  infants  ought  not  to  have  been  confined  to  cases  where  a 
suit  is  depending  for  property  in  that  court.  It  would  seem  to  belong 
to  the  Court  of  Chancery,  as  the  general  delegate  of  the  crown,  acting 
as  parens  patriae.,  for  the  protection  of  the  persons  and  property  of  those 
who  are  unable  to  take  care  of  themselves,  and  yet  possess  the  means 
of  maintenance,  and  are  without  any  other  suitable  guardian;  and  upon 
that  ground,  that  it  ought  to  reach  all  cases  where  the  person  or  the 
property  of  the  infant  required  the  protection  of  the  court,  without  any 
inquiry  whether  there  was  a  ground  for  actual  litigation  or  not.  But, 
in  practice,  it  seems  to  have  been  limited  to  cases  where  an  action  is 
actually  pending,  even  when  the  whole  gravafnen  of  the  action  is  a 
mere  fiction  (c). 

§  1352.  We  are  next  led  to  the  consideration  of  what  constitutes 
an  infant  a  ward  of  court,  in  respect  to  whom  the  court  interferes  in  a 
great  variety  of  cases,  when  it  would  not,  if  the  infant  did  not  stand 

(b)  Inst.  Lib.  1,  tit.  20  to  26. 

(c)  It  often  occurs,  that  a  bill  is  filed  for  the  eole  purpose  of  making  an  infant  i. 
ward  of  chancery ;  but  in  such  a  case  the  bill  always  states,  however  untruly,  that 
the  infant  has  property  within  the  jurisdiction,  and  the  bill  is  brought  against  the 
person  in  whose  supposed  custody  or  power  the  property  is.  Johnstone  v.  Beattie, 
10  CI.  &  P.  42.  Why  such  a  mere  fiction  should  be  resorted  to,  has  never,  as  it 
seems  to  me,  been  satisfactorily  explained ;  and  why  the  Lord  Chancellor,  exercising 
the  prerogative  of  the  crown  as  parens  patr-ire,  might  not,  in  his  discretion,  appoint  a 
guardian  to  an  infant,  having  no  other  guardian,  without  any  bill  being  filed,  seems 
difficult  to  understand  upon  principle.  But  the  practice  seems  founded  upon  narrower 
ground. 


§  1351—1354.]  INFANTS.  567 

in  that  predicament  in  relation  to  the  court.  Properly  speaking,  a 
ward  of  court  is  a  person  who  is  under  a  guardian  appointed  by  the 
court  (d).  But,  wherever  an  action  is  brought  relative  to  the  person 
or  property  of  an  infant,  although  he  is  not  under  any  general  guardian 
appointed  by  the  court,  he  is  treated  as  a  ward  of  the  court,  and  as 
being  under  its  special  cognizance  and  protection.  But  unless  there  is 
some  actual  litigation  to  which  the  infant  is  a  party,  a  proceeding 
relative  to  an  infant's  property  will  not  constitute  him  a  ward  of 
court  (e). 

§  1353.  In  all  cases  where  an  infant  is  a  ward  of  court,  no  act  can 
be  done  affecting  the  person,  or  property,  or  state  of  the  minor,  unless 
under  the  express  or  implied  direction  of  the  court  itself.  Every  act 
done  without  such  direction  is  treated  as  a  violation  of  the  authority  of 
the  court,  and  the  offending  party  will  be  arrested  upon  the  proper 
process  for  the  contempt,  and  compelled  to  submit  to  such  orders  and 
such  punishment  by  imprisonment,  as  are  applied  to  other  cases  of 
contempt.  Thus,  for  example,  it  is  a  contempt  of  court  to  conceal  or 
withdraw  the  person  of  the  infant  from  the  proper  custody  (/);  to 
disobey  the  orders  of  the  court  in  relation  to  the  maintenance  or  educa- 
tion of  the  infant;  or  to  marry  the  infant  without  the  proper  consent 
or  approbation  of  the  court.  Of  the  latter  more  will  be  presently 
stated  (gf).  Indeed,  when  once  the  court  has  thus  directly  or  indirectly 
assumed  authority  over  the  person  or  property  of  an  infant,  as  its 
ward,  it  acts  throughout  with  all  the  anxious  care  and  vigilance  of  a 
parent;  and  it  allows  neither  the  guardian,  nor  any  other  person,  to 
do  any  act  injurious  to  the  rights  or  interests  of  the  infant. 

§  1354.  In  the  next  place,  in  regard  to  the  maintenance  of  infants. 
Whenever  the  infant  is  a  ward  of  court  and  an  action  is  pending  in  the 
court,  the  court  will,  of  course,  direct  a  suitable  maintenance  for  the 
infant,  having  a  due  regard  to  the  rank,  the  future  expectations,  the 
intended  profession  or  employment,  and  the  property  of  the  latter. 
But,  where  there  is  already  a  guardian  in  existence,  not  deriving  his 
authority  from  the  court,  and  where  there  is  no  action  in  the  court 
touching  the  infant  or  his  property,  there  formerly  existed  a  doubt 
whether  the  court  could  interfere  summarily  to  direct  a  suitable 
maintenance  of  the  latter.  The  effect  of  this  doubt  was  to  allow 
the  guardian  to  exercise  his  discretion  at  his  own  peril;  and  thus  to 
leave  much  to  his  sense  of  duty,  and  much  more  to  his  habits  of  bold 
or  of  timid  action  in  assuming  responsibility.     At  present,  the  practice 

(d)  Johnstone  v.  Beattie,  10  CI.  &¥.  42;  Stuart  v.  Marquis  of  Bute,  9  H.  L.  C. 
440;  Gynn  v.  Qilbard,  1  Dr.  &  Sm.  356;  In  re  Hodges,  3  K.  &  J.  213;  In  re  Graham, 
L.  B.  10  Bq.  530. 

(e)  In  re  Dalton,  6  De  G.  M.  &  G.  201 ;  In  re  Hillary,  2  Dr.  &  Sm.  461 ;  Ex  parte 
Brewer,  2  Dr.  &  Sm.  562;  Brown  v.  Collins,  25  Ch.  D.  56. 

(/)  Wellesley's  Case,  2  Euss.  &  M.  159;  Ramsbothatn  v.  Senior,  L.  B.  8  Bq. 
575 

(g)  Post,  §  1358. 


568  EQUITY  JURISPRUDENCE.  [CH.  XXXIV. 

which  grew  up  of  entertaining  such  an  application  without  a  formal 
suit  is  adopted,  the  procedure  being  by  summonses  in  chambers  (h). 

§  1354a..  But,  in  regard  to  the  maintenance  of  infants  out  of 
their  own  property,  it  is  important  to  difierentiate  between  two  classes 
of  cases,  one  where  there  is  a  trust  for  maintenance,  and  the  other 
a  power  for  maintenance.  In  the  first  case  the  father  is  entitled  to 
have  the  income  paid  to  him  irrespective  of  his  ability  to  maintain 
the  infant  children,  and  in  the  second  his  right  is  measured  by  his 
ability  to  maintain  them,  unless  the  trustees  are  empowered  to  apply 
the  income  in  the  maintenance  of  the  infant  children,  and  exercise 
that  power  in  fact  (j).  In  an  exceptional  case,  the  court  has  allowed 
maintenance  to  a  father  of  large  independent  means  (k).  Another 
category  must  also  be  borne  in  mind.  Where  a  maintenance  clause 
fixes  a  sum  to  be  allowed  and  directs  the  surplus  income  to  be 
accumulated,  the  court  may  exceed  the  sum  so  fixed  if  a  special 
case  be  made  justifying  the  increase,  unless  there  are  additional 
words  restricting  the  right  to  exceed  that  allowance  (l).  A  mother 
is  not  regarded  as  bound  to  support  her  infant  children,  and  mainten- 
ance is  allowed  irrespective  of  her  ability  (m). 

§  13546.  The  court,  also,  is  not  limited  in  its  authority,  in  regard 
to  maintenance,  to  cases  where  the  infant  is  resident  within  the 
territorial  jurisdiction  of  the  court,  or  the  maintenance  is  to  be  applied 
there.  But  in  suitable  cases,  and  under  suitable  circumstances,  it 
will  order  maintenance  for  an  infant  out  of  the  jurisdiction,  taking 
caore  to  impose  such  conditions  and  restrictions  on  the  party  apply- 
ing for  it  as  will  secure  a  proper  application  of  the  money  (n). 

§  1355.  In  allowing  maintenance,  the  court  will  have  a  liberal 
regard  to  the  circumstances  and  state  of  the  family  to  which  the 
infant  belongs;  as,  for  example,  if  the  infant  be  an  elder  son,  and 
the  younger  children  have  no  provision  made  for  them,  an  ample 
allowance  will  be  allowed  to  the  infant,  so  that  the  younger  children 
may  be  maintained  (o) ;  or  for  the  support  of  an  illegitimate 
brother  (p).  Similar  considerations  will  apply  if  a  father  of  an  infant 
is  in  distress  or  narrow  circumstances  (q).  On  the  other  hand,  in 
allowing  maintenance,  the  court  usually  confines  itself  within  the 
limits  of  the  income  of  the  property.  But  where  the  property  is 
small,  and  more  means  are  necessary  for  the  due  maintenance  of 
the  infant,  the  court  will  sometimes  allow  the  capital  to  be  broken 

()i)  Rules  of  the  Supreme  Court,  1883  Order  LV.  r.  2  (125. 
(i)  Brophy  v.  Bellamy,  L.  E.  8  Ch.  798;  Wilson  v.  Turner,  22  Ch.  D.  521. 
(k)  Jervoise  v.  Silk,  G.  Coop.  52. 

(l)  In  re  Walker,  Walker  v.  Duncombe,  [1901]  1  Ch.  879. 
(m)  Haley  v.  Bannister,  4  Mad.  27S ;  Douglas  v.  Andrews,  12  Beav.  310. 
(?i)  Stephens  v.  James,  1  Myl.  &  K.  627. 

(o)  Lanoy  v.  Duke  of  Athol,  2  Atk.  447;  Burnet  v.  Burnet,  1  Bro.  C.  C.  179, 
and  Mr.  Belt's  note. 

(p)  Bradshaw  v.  Bradshaw,  1  Jac.  &  W.  647.      (g)  Allen  v.  Coster,  1  Beav.  201. 


§  1354a— 1357.]  infants.  569 

in  upon  (?•).  But,  without  the  express  sanction  of  the  court,  a 
trustee  or  guardian  will  not  be  permitted,  of  his  own  accord,  to  break 
in  upon  the  capital  (s). 

§  1355a.  By  Lord  Cranworth's  Act  (28  &  24  Vict.  c.  145),  s.  28, 
it  was  provided  that,  in  all  cases  where  any  property  is  held  by 
trustees,  in  trust  for  an  infant,  either  absolutely  or  contingently  on  his 
attaining  the  age  of  twenty-one  years,  or  on  the  occurrence  of  any 
event  previously  to  his  attaining  that  age,  it  shall  be  lawful  for  such 
trustees,  at  their  sole  discretion,  to  pay  to  the  guardians  (if  any)  of 
such  infant,  or  otherwise  to  apply  for  or  towards  the  maintenance  or 
.education  (t)  of  such  infant,  the  whole  or  any  part  of  the  income 
to  which  such  infant  may  be  entitled  in  respect  of  such  property, 
whether  there  be  any  other  fund  applicable  to  the  same  purpose,  or 
any  other  person  bound  by  law  to  provide  for  such  maintenance  or 
education  or  not ;  and  such  trustees  shall  accumulate  all  the  residue 
of  such  income  by  way  of  compound  interest  by  investing  the  same 
and  the  resulting  income  therefrom  in  proper  securities,  for  the  benefit 
of  the  person  who  shall  ultimately  become  entitled  to  the  property  from 
which  such  accumulations  shall  have  arisen;  provided  always  that  it 
shall  be  lawful  for  such  trustees  at  any  time,  if  it  shall  appear  to 
them  expedient,  to  apply  the  whole  or  any  part  of  such  accumula- 
tions as  if  the  same  were  part  of  the  income  arising  in  the  then 
current  year.  These  provisions  are  in  substance  re-enacted  by  the 
Conveyancing  Act,  1881,  s.  48,  sub-ss.  1,  2,  and  3.  But  they  may 
be  excluded  by  a  contrary  intention  expressed  in  the  instrument. 
The  intermediate  income  of  a  contingent  gift  cannot  be  applied  under 
the  section,  unless  the  infant  will  become  absolutely  entitled  to  the 
income  as  an  accretion  to  the  capital  (m).  But  where  the  capital 
is  given  to  members  of  a  class  who  shall  attain  twenty-one,  as  each 
has  an  equal  chance  of  sharing  in  the  fund  when  it  becomes 
devisable,  maintenance  may  be  given  (x).' 

§  1356.  In  the  next  place,  in  regard  to  the  management  and 
disposal  of  the  property  of  infants.  And  here,  the  court  will 
exercise  a  vigilant  care  over  guardians  in  the  management  of  the 
property  of  the  infant. 

§  1357.  Guardians  should  not  change  the  personal  property  of  the 
infant  into  real  property,  or  the  real  property  into  personalty;  since 
it  may  not  only  affect  the  rights  of  the  infant  himself,  but  also  his 
representatives,   if  he  should  die  under  age,   unless  it  is  manifestly 

(r)  Bridge  v.  Brown,  1  Y.  &  C.  Ch.  181;  Ex  paHe  Hays,  3  De  G.  &  Sm.  485; 
In  re  Welch,  23  L.  J.  Ch.  344. 

(s)  Walker  v.  Wetherell,  6  Ves.  474. 

it)  In  the  Conveyancing  Act,  1881,  s.  43,  sub-s.  2,  the  word  benefit  is  added. 

(«)  In  re  Dickson,  Hill  v.  Grant,  29  Ch.  D.  331 ;  In  re  Bowlby,  B'owlby  v.  Bowlby, 
[1904]  2  Ch.  685. 

(x)  In  re  Holford,  Holford  v.  Holford,  [1894]  3  Ch.  30;  In  re  Jeffery,  Arnold  v. 
Burt,  [1895]  2  Ch.  537. 


570  EQUITY    JURISPRUDENCE.  [CH.    XXXIV. 

for  the  benefit  of  the  infant,  change  the  nature  of  the  estate;  and 
the  court  will  support  their  conduct,  if  the  act  be  such  as  the  court 
itself  would  have  done,  under  the  like  circumstances,  by  its  own  order. 
The  act  of  the  guardian,  in  such  a  case,  must  not  be  wantonly  done; 
but  it  must  be  for  the  manifest  interest  and  convenience  of  the 
infant  (y).  And  when  the  court  directs  any  such  change  of  property, 
it  directs  the  new  investment  to  be  in  trust  for  the  benefit  of  those 
who  would  be  entitled  to  it,  if  it  had  remained  in  its  original  state  («). 

§  1358.  In  the  next  place,  in  regard  to  the  marriage  of  infants. 
This  is  a  most  important  and  delicate  duty  of  the  court,  which  it 
exercises  with  grea.t  caution  in  relation  to  all  persons  who  are  wards 
of  ccfurt.  No  person  is  permitted  to  marry  a  ward  of  court  without 
the  express  sanction  of  the  court,  even  with  the  consent  of  the 
guardian.  If  a  man  should  marry  a  female  ward  without  the  consent 
and  approbation  of  the  court,  he  (»),  and  all  others  concerned  in 
aiding  and  abetting  the  act  (6),  will  be  treated  as  guilty  of  a  contempt 
of  the  court;  and  the  husband  himself,  even  though  he  were  ignorant 
that  she  was  a  ward  of  court,  will  still  be  deemed  guilty  of  a 
contempti  (c). 

§  1359.  In  all  cases  where  the  court  appoints  a  guardian,  or 
committee  in  the  nature  of  a  guardian,  to  have  the  care  of  an  infant, 
it  is  accustomed  to  require  the  party  to  give  a  recognizance  that  the 
infant  shall  not  marry  without  the  leave  of  the  court;  which  form 
is  rarely  altered,  and  only  upon  special  circumstances.  So  that,  if  an 
infant  should  marry,  though  without  the  privity,  or  knowledge,  or 
neglect  of  the  guardian,  or  committee;  yet  the  recognizance  would  in 
strictness  be  forfeited,  w^hatever  favour  the  court  might,  upon  an 
application,  think  fit  to  extend  to  the  party,  when  he  should  appear 
to  have  been  in  no  fault  (d). 

§  1360.  With  a  view,  also,  to  prevent  the  improper  marriages  of 
its  wards,  the  court  will,  where  there  is  reason  to  suspect  an  intended 
and  improper  marriage  without  its  sanction,  by  an  injunction,  not 
only  interdict  the  marriage,  but  also  interdict  communications  between 
the  ward  and  the  admirer;   and  if  the  guardian  is  suspected  of  any 

(y)  Inwood  v.  Twyne,  Ambler  417,  and  Mr.  Blunt's  note;  s.o.  2  Eden  148,  and 
Mr.  Eden's  note.  The  rule  seems  now  to  be,  that  it  is  the  duty  of  the  court  to  pre- 
serve the  estates  of  all  infanta  in  the  condition  in  which  the  ancestor  has  left  them, 
unless  some  overwhelming  necessity  is  shown  for  conversion.  Marquis  Camden  v. 
Murray,  16  Ch.  D.  161,  at  p.  171. 

(z)  Ware  v.  Polhill,  11  Ves.  257;  Ex  parte  Phillips,  19  Ves.  118;  Webb  v.  Lord 
Shaftesbury,  6  Mad.  100. 

(a)  Bathurst  v.  Murray,  8  Ves.  74;  Field  v.  Brown,  17  Beav.  146;  Cox  v.  Ben- 
nett, 31  L.  T.  83. 

(b)  Eyre  v.  Countess  of  Shaftesbury,  2  P.  Wms.  103,  112;  More  v.  More,  2  Atk. 
157;  Priestley  v.  Lamb,  6  Ves.  421. 

(c)  Eyre  v.  Countess  of  Shaftesbury,  2  P.  Will.  103. 

(d)  Eyre  v.  Countess  of  Shaftesbury,  2  P.  Will.  112;  Dr.  Davis's  Case,  1  P.  Will. 
698. 


§  1358— 1361b.]  INFANTS.  571 

connivance,  it  will  remove  the  infant  from  his  care  and  custody,  and 
place  the  infant  under  the  care  and  custody  of  a  committee  (e). 
Lord  Hardwicke  has  justly  remarked,  that  this  jurisdiction  is  highly 
important  in  its  exercise  under  both  of  these  aspects;  in  the  first 
place,  when  it  is  exercised  by  way  of  punishment  of  such  as  have  done 
any  act  to  the  prejudice  of  the  ward;  in  the  next  place,  by  the  still 
more  salutary  and  useful  exercise,  by  way  of  prevention,  when  it 
restrains  persons  from  doing  any  act  to  disparage  the  ward,  before  the 
act  has  been  completed  (/).  But  the  court  has  no  jurisdiction  to 
compel  an  infant  ward  of  court  to  make  a  settlement  of  his  own 
property  because  he  has  been  guilty  of  contempt  in  marrying  without 
leave  {g). 

§  1361.  In  case  of  an  offer  of  marriage  of  a  ward,  the  court  will 
refer  it  to  a  master,  to  ascertain  and  report,  whether  the  match 
is  a  suitable!  one,  and  also  what  settlement  ought  to  be  made.  And 
where  a  marriage  has  been  actually  celebrated  without  the  sanction 
of  the  court,  the  court  will  not  discharge  the  husband,  who  has  been 
committed  for  the  contempt,  until  he  has  actually  made  such  a  settle- 
ment upon  the  female  ward,  as,  upon  a  reference  to  a  master,  shall, 
under  all  the  circumstances,  be  deemed  equitable  and  proper.  One 
important  consideration  is  whether  there  has  been  any  circumstance 
of  aggravation  (h).  If  there  has  been,  the  husband  will  be  excluded 
from  all  direct  benefit  under  the  settlement,  but  a  general  power 
to  the  wife  to  appoint  by  will  in  case  of  default  of  issue  is  a  proper 
provision,  although  the  husband  might  ultimately  derive  an  interest 
in  the  wife's  property  (i).  It  will  not  make  any  difference  in  the  case, 
that  the  ward  has  since  arrived  of  age,  or  is  ready  to  waive  her 
right  to  a  settlement;  for  the  court  will  protect  her  against  her  own 
indiscretion,  and  the  undue  influence  of  her  husband  {k). 

§  1361b.  The  court  refuses  to  interfere  with  the  custody  of 
foreign  guardians  and  their  control  of  their  wards,  upon  mere  grounds 
of  expediency  and  advantage  to  the  wards.  If  there  is  English 
property  belonging  to  the  wards,  English  guardians  will  be  appointed 
to  supplement  the  office  and  duty  of  the  foreign  guardians,  in  case  of 
neglect  or  abuse,  and  to  bring  the  matter  before  the  court  for  proper 
directions.  But  no  interference  with  the  control  of  the  person  of 
the  wards  by  the  foreign  guardians  will  be  allowed  until  some  case 
of  abuse  is  shown.  The  court  will  not  in  such  case  entertain  any 
question  of  the  preference  of  the  wards  and  the  greater  advantage  to 
them  of  English  control  or  education  (I). 

(e)  Smith  v.  Smith,  3  Atk.  304;  Pearce  v.  Crutchfield,  14  Ves.  206, 
(/)  Smith  V.  Smith,  3  Atk.  305.  (iji)  In  re  Leigh  v.  Leigh,  49  Ch.  D.  290. 

(h)  Bathurst  v.  Murray,  8  Ves.  74;  Anon.,  4  Buss.  473. 
(i)  Att.-Gen.  v.  Lucas,  2  Ph.  753;  In  re  Sampson  v.  Wall,  25  Ch.  D.  482. 
(&)  Stevens  v.  Savage,  1  Ves.  Jun.  154. 

(!)  Daniel  v.  Newton,  8  Beav.  485;  In  re  Dawson,  Dawson  v.  Jay,  2  Sm.  &  G. 
199;  Nugent  v.  Vetsera,  L.  E.  2  Eq.  704;  In  re  Bourgoise,  41  Ch.  D.  610. 


572  EQUITY     JURISPRUDENCE.  [CH.    XXXV. 


CHAPTER    XXXV. 


IDIOTS    AND    LUNATICS. 


§  1362.  With  this  brief  exposition  of  the  jurisdiction  and  doctrines 
of  the  Court  of  Chancery,  in  regard  to  infants,  we  may  dismiss  the 
subject  and  proceed  to  the  consideration  of  the  jurisdiction  in 
relation  to  Idiots  and  Lunatics.  The  remarks,  which  have  been 
already  made,  to  distinguish  the  jurisdiction  of  the  court  in  this  class 
of  cases  from  that  exercised  in  cases  of  infants,  have,  in  a  great 
measure,  anticipated,  and  brought  under  discussion,  the  explanations 
proper  for  this  place  (a).  If  the  preceding  views  of  this  subject  are 
correct,  the  Court  of  Chancery  might  properly  have  been  deemed  to 
have  had,  originally,  as  the  general  delegate  of  the  authority  of  the 
crown,  as  parens  ■patrise,  the  right,  not  only  to  have  the  custody  and 
protection  of  infants,  but  also  of  idiots  and  lunatics,  when  they  have 
no  other  guardian.  But  this  claim  to  an  original  jurisdiction  had 
been  discountenanced  judicially  by  Lord  Loughborough  (b)  and  Lord 
Eldon  (c),  who  have  pointed  out  that  the  delegation  to  the  Lord 
Chancellor  was  only  for  the  purposes  of  administration;  and  the 
choice  of  that  officer  accidental  and  not  compulsory.  Since  1851, 
the  Lords  Justices  have  been  appointed  under  the  royal  sign-manual, 
and  by  the  Lunacy  Act,  1890,  53  Vict.  c.  5,  sec.  108,  the  delegates 
of  the  crown  are  to  be  chosen  among  the  holders  of  the  Great  Seal 
or  the  Judges  of  the  Supreme  Court  (d). 

§  1363.  But  the  statute  of  17  Ed.  2,  cc.  9,  10,  introduced  some 
new  rights,  powers,  and  duties  of  the  crown;  and  since  that  period, 
the  jurisdiction  is  not  the  same  as  in  the  case  of  infants,  nor  are  the 
doctrines  of  the  judge  the  same  in  all  respects.  Still,  for  the  most 
part,  they  agree  in  substance;  and,  in  a  work  like  the  present,  there 
would  be  little  utility  in  a  more  minute  and  comprehensive  enumera- 
tion of  the  distinctions  and  differences  between  them. 

§  1364.  But  whatever  may  be  the  true  origin  of  the  authority  of 
the  crown,  as  to  idiots  and  lunatics,  the  judges  of  the  Court  of 
Lunacy  do  not  at  the  present  day  act,  in  all  cases,  under  the  special 
warrant  by  the  sign-manual,  but  the  jurisdiction  and  procedure  are 
regulated    by    statute — the    Lunacy    Act,    1890,    53    Vict.    c.    5    and 

(a)  Ante,  §  1334  to  1336. 

(b)  Oxenden  v.  Lord  Compton,  2  Vea.  Jun.  72. 

(c)  Ex  parts  Phillips,  19  Ves.  118;  Sherwood  v.  Sanderson,  19  Ves.  28Q.- 

(d)  In  re  Catheart,  [1893]  1  Ch.  466. 


§  1362—1365.]  IDIOTS   and   lunatics.  573 

amending  statute.  The  statute  empowers  the  court  to  provide  for 
the  maintenance  of  idiots  and  lunatics,  and  for  the  care  of  their 
persons  and  estates;  and  no  more  (e).  "When  a  person  is  ascertained 
to  be  an  idiot  or  lunatic  (/),  the  court  proceeds  to  commit  the  custody 
of  the  person  and  estate  of  the  idiot  or  lunatic,  sometimes  to  the  same 
person,  and  sometimes  to  different  persons,  aecordi-ng  to  circum- 
stances, and  to  direct  for  him  a  suitable  maintenance  (g).  It  is  usual 
to  take  bond  from  the  committees  to  account  and  submit  to  the 
orders  of  the  court;  but  it  is  not  absolutely  necessary  so  to  do  (h). 

§  1364a.  By  the  present  construction  of  3  &  4  Will.  4,  c.  74, 
the  Lord  Chancellor  has  authority  to  give  consent,  on  the  part  of  a 
lunatic,  tenant  in  tail  in  possession,  that  the  first  tenant  in  tail  in 
remainder  may  bar  the  subsequent  limitations,  on  a  proper  case  being 
made  out  for  the  exercise  of  that  authority  (i).  In  the  case  of  a  devise 
of  real  and  personal  estate,  to  trustees,  to  apply  the  whole,  or  any 
part  of  the  rents,  to  the  maintenance  of  an  imbecile  person,  it  was 
held  that  the  trustees  could  not  interpose  that  discretionary  power  to 
oust  the  jurisdiction  of  the  court;  and  that  the  trust  was  in  exonera- 
tion of  the  private  property  of  the  cestui  que  trust,  so  that  his  personal 
representative  might  claim  to  have  recouped  out  of  the  income  of  the 
trust  property  any  sum  which  he  may  have  applied  out  of  the  private 
property  of  the  imbecile  towards  his  maintenance  (fc). 

§  1365.  In  regard  to  the  manner  of  ascertaining  whether  a  person 
is  an  idiot  or  lunatic,  or  not,  a  few  words  will  suffice.  Upon  a  proper 
petition,  a  commission  issues  out  of  lunacy,  on  which  the  inquiry  is 
to  be  made,  as  to  the  asserted  idiocy  or  lunacy  of  the  party  {I). 
The  inquisition  is  always  had  and  the  question  tried  by  a  jury,  or 
before  a  master  in  lunacy,  whose  unimpeached  verdict  becomes 
conclusive  upon  the  fact.  The  commission  is  not  confined  to  idiots 
or  lunatics,  strictly  so  called;  but  in  modern  times  it  is  extended  to  all 
persons  who,   from  disease  or  age,   are  incapable  of  managing  their 

(e)  Lysaght  v.  Royse,  2  Sch.  &  Lefr.  153.  In  order  that  the  chancellor  should 
deal  with  the  property  of  a  lunatic  at  all,  it  is  necessary  that  a  commission  should  be 
taken  Out,  or  that  the  lunatic  should  be  a  party  in  a  cause;  otherwise  the  court  has 
no  jurisdiction.     Gilbee  v.  GUbee,  1  Phil.  121. 

(/)  As  to  the  jurisdiction  of  chancery  to  interfere  for  the  protection  of  a  lunatic 
not  found  so  by  inquisition,  see  Nelson  v.  Buncombe,  9  Beav.  211. 

ig)  Dormer's  Case,  2  P.  Will.  263;  Sheldon  v.  Fortescue  Aland,  3  P.  Will.  110; 
Lysaght  v.  Boyse,  2  Sch.  &  Lefr.  153;  Ex  parte  Chumley,  1  Ves.  Jun.  296;  Ex  parte 
Baker,  6  Ves.  8;  Ex  parte  Pickard,  3  Ves.  &  B.  127;  In  r,e  Webb,  2  Phil.  10. 

(h)  In  re  Frank,  2  Buss.  450;  In  re  Burroughs,  2  Dru.  &  War.  207;  Ex  parte 
Mount,  21  L.  J.  Ch.  221. 

(i)  In  re  Blewitt,  6  De  G.  M.  &  G.  187 ;  In  re  Wynne,  L.  E.  7  Ch.  229.  And 
property  falling  to  a  lunatic  will  be  applied  to  past  maintenance,  though  no  inquisition 
had  been  had.  In  re  Gibson,  L.  E.  7  Ch.  52.  So,  income  of  the  separate  estate  of  a 
married  woman  may  be  applied  to  her  support  when  lunatic.  In  re  Baker's  Trusts, 
L.  K.  13  Eq.  168. 

{k)  In  re  Sanderson's  Trusts,  8  Kay  &  J.  497. 

(I)  Lunacy  Act,  1890,  Part  III. 


574  EQUITY  JURISPRUDENCE.  [CH.   XXXV. 

own  affairs,  and  therefore  are  properly  deemed  of  unsound  mind,  or 
non  compotes  mentis  (m). 

§  1365a.  The  jurisdiction  of  the  court  over  lunatics  is  not  confined 
to  lunatics  domiciled  within  the  country;  but  a  commission  of  lunacy 
may  issue  where  the  lunatic  has  lands  or  other  property  within  the 
State,  although  he  is  domiciled  abroad  (n.). 

(m)  Lunacy  Act,  1890,  sect.  116,  sub-s.  1  (d). 

(n)  Lunacy  Act,  1890,  sects.  90,  96.    Southcote's  Case,  2  Ves.  Sen.  402. 


§  1365a — 1367.]  married,  women.  575 


CHAPTER   XXXVI. 


MARRIED    WOMEN. 


§  1366.  We  may  next  proceed  to  the  consideration  of  the  pecuhar 
jurisdiction  exercised  by  courts  of  equity,  in  regard  to  the  persons 
and  property  of  Married  Women  ;  and,  principally,  in  regard  to 
their  property.  It  is  not  our  design,  in  these  Commentaries,  to  enter 
upon  any  consideration  of  the  general  doctrines  relative  to  the  rights, 
duties,  powers,  and  interests  of  husband  and  wife,  which  are  recog- 
nised at  the  common  law.  That  would  properly  belong  to  a  treatise 
of  a  very  different  nature.  It  will  be  sufficient,  for  our  present 
purpose,  to  examine  those  particulars  only  which  are  pecuhar  to  courts 
of  equity,  or  in  which  a  remedial  justice  is  applied  by  them  beyond, 
or  unknown  to,  the  common  law.  Although  these  doctrines  are  for 
the  most  part  rendered  obsolete  by  the  operation  of  the  Married 
Women's  Property  Act,  1882,  from  their  historical  importance  it  is 
considered  advisable  to  retain  them  in  the  text. 

§  1367.  It  is  well  known  that,  at  the  common  law,  husband  and 
wife  were  treated,  for  most  purposes,  as  one  person ;  that  is  to  say,  the 
very  being  or  legal  existence  of  the  woman,  as  a  distinct  person,  was 
suspended  during  the  marriage,  or,  at  least,  was  incorporated  and 
consolidated  with  that  of  her  husband.  Upon  this  principle,  of  the 
union  of  person  in  husband  and  wife,  depended  almost  all  the  legal 
rig'hts,  duties,  and  disabilities  which  either  of  them  acquired  by  or 
during  the  marriage  (a).  For  this  reason,  a  man  could  not  grant 
anything  to  his  wife,  or  enter  into  a  covenant  with  her;  for  the  grant 
would  have  supposed  her  to  possess  a  distinct  and  separate  existence. 
And,  therefore,  it  was  also  generally  true,  that  contracts  made  between 
husband  and  wife,  when  single,  were  avoided  by  the  intermarriage  (b). 
Upon  the  same  ground  it  is,  that,  if  the  wife  were  injured  in  her 
person  or  property  during  the  marriage,  she  could  bring  no  action  for 
redress  without  the  concurrence  of  her  husband,  neither  could  she  be 
sued,  without  making  her  husband  also,  a  party  in  the  cause  (c).  All 
this  is  very  different  in  the  civil  law,  where  the  husband  and  wife 
are    considered    as    two    distinct    persons;    and    may    have    separate 

(a)  1  Black.  Coram  442.  I  have  qualified  Blackstone'a  text  by  adding  the  words, 
"  for  most  purposes;  "  for,  in  some  respects,  even  at  law,  she  is  treated  as  a  distinct 
person;  as,  for  example,  she  may  commit  crimes  separately  from  her  husband;  she 
may  act  as  an  attorney  for  him,  or  for  others;  she  may  levy  a  fine;  she  may  swear 
articles  of  peace  against  him. 

(b)  1  Black.  Comm.  442. 

(c)  1  Black.  Comm.  443. 


576  EQUITY  JURISPRUDENCE.  [CH.  XXXVI. 

estates,  contracts,  debts,  and  injuries  (d);  and  may  also,  by  agreement 
with  each  other,  have  a  community  of  interest,  in  the  nature  of  a 
partnership. 

§  1368.  Now,  in  courts  of  equity,  although  the  principles  of  law, 
in  regard  to  husband  and  wife,  were  recognised  and  not  interfered 
with  actively,  yet  they  were  not  exclusively  considered.  On  the 
contrary,  courts  of  equity,  for  many  purposes,  treated  the  husband 
and  wife  as  the  civil  law  treats  them,  as  distinct  persons,  capable  (in 
a  limited  sense)  of  contracting  with  each  other,  of  suing  each  other, 
and  of  having  separate  estates,  debts,  and  interests  (e).  A  wife 
might,  in  a  court  of  equity,  sue  her  husband,  and  be  sued  by  him  (/). 
And  in  cases  respecting  her  separate  estate,  she  might  also  be  sued 
without,  him  (g) ;  although  he  was  ordinarily  required  to  be  joined  for 
the  sake  of  conformity  to  the  rule  of  law,  as  a  nominal  party,  when- 
ever he  was  within  the  jurisdiction  of  the  court,  and  could  be  made 
a  party  (h). 

§  1369.  In  the  further  illustration  of  this  subject,  we  shall  consider, 
first,  the  cases  in  which  contracts  between  husband  and  wife  would 
be  recognized  and  enforced  in  equity ;  secondly,  the  manner  in  which 
a  wite  might  acquire  a  separate  estate,  and  her  powers  and  interest, 
therein;  thirdly,  the  equity  of  the  wife  to  a  settlement  out  of  her  own 
property,  not  reduced  into  the  possession  of  her  husband;  and, 
fourthly,  her  claim  in  equity  for  maintenance  and  alimony. 

§  1370.  And  first,  in  regard  to  contracts  between  husband  and 
wife.  By  the  general  rules  of  law,  as  has  been  already  stated,  the 
contracts  made  between  husband  and  wife  before  marrriage  became, 
by  their  matrimonial  union,  utterly  extinguished  (/).  Thus,  for 
example,  if  a  man  should  give  a  bond  to  his  wife,  or  a  wife  to  her 
husband,  before  marriage,  the  contract  created  thereby  would,  at  law, 
be  discharged  by  the  intermarriage  (fc).  Courts  of  equity,  although 
they  generally  followed  the  same  doctrine,  would,  in  special  cases,  in 
furtherance  of  the  manifest  intentions  and  objects  of  the  parties, 
carry  into  effect  such  a  contract  made  before  marriage  between 
husband  and  wife,  although  it  would  be  avoided  at  law  (I).  An  agree- 
ment, therefore,  entered  into  by  husband  and  wife,  before  marriage, 
for  the  mutual  settlement  of  their  estates,  or  of  the  estate  of  either 
upon  the  other,  upon  the  marriage,  even  without  the  intervention  of 
trustees,    would   be    enforced   in    equity,    although    void    at   law;    for 

(d)  1  Black.  Comm.  444. 

(e)  Woodward  v.  Woodward,  3  De  G.  J.  &  S.  672;  Butler  v.  Butler,  16  Q  B.  D. 
831. 

(/)  Cannel  v.  Buckle,  2  P.  Will.  243,  244. 

(g)  Dubois  v.  Hole,  2  Vern.  613,  and  Mr.  Balthby's  note  (1). 

(h)  See  Lillia  v.  Airey,  1  Vea.  Jun.  278. 

(i)  Co.  Litt.  112a,  187b. 

(k)  Com.  Dig.  Baron  d  Feme,  D.  1 ;  Cro.  Car.  551 ;  Co.  Litt.  264b. 

(I)  Rippon  V.  Dawding,  Ambler  566,  and  Mr.  Blunt's  note. 


§    1368 1372.]  MARRIED     WOMEN.  577 

equity  would  not  suffer  the  intention  of  the  parties  to  be  defeated  by 
the  very  act  which  is  designed  to  give  effect  to  such  a  contract  (rn). 
On  this  ground,  where  a  wife,  before  marriage,  gave  a  bond  to  her 
intended  husband,  that,  in  case  the  marriage  took  effect,  she  would 
convey  her  estate  to  him  in  fee,  the  bond  was,  after  the  marriage, 
carried  into  effect  in  equity,  although  it  was  discharged  at  law. 
Upon  that  occasion  Lord  Macclesfield,  L.C.,  said  :  "  It  is  unreasonable 
that  the  intermarriage,  upon  which  alone  the  bond  was  to  take  effect, 
should  itself  be  a  destruction  of  the  bond.  And  the  foundation  of  that 
notion  is,  that  at  law  the  husband  and  wife,  being  one  person,  the 
husband  cannot  sue  the  wife  on  this  agreement ;  whereas,  in  equity, 
it  is  constant  experience  that  the  husband  may  sue  the  wife,  or  the 
wife  the  husband;  and  the  husband  might  sue  the  wife  upon  this  very 
agreement  "  (w). 

§  1371.  If  a  debt  were  by  specialty,  then  owing  to  a  technicality 
based  upon  a  formal  procedure  (o),  a  widow  might  pursue  her  remedies 
at  law  against  the  personal  representatives  of  a  covenantor  with  whom 
she  had  subsequently  intermarried,  as  in  the  case  of  a  bond  to  leave 
her  a  sum  of  money  by  will  (p),  or  a  covenant  to  pay  an  annuity  (g). 
The  reason  being  that  there  no  longer  existed  any  objection  to  parties 
at  the  time  of  action  brought  (r).  A  fortiori,  such  an  agreement 
would  be  specifically  decreed  in  a  court  of  equity  (s).  Therefore, 
where  a  husband  covenanted  before  marriage  with  his  intended  wife, 
that  she  should  have  power  to  dispose  of  £300  of  her  estate,  he  was 
afterwards  held  bound  specifically  to  perform  it  (t).  The  wife  might 
even  execute  a  power  to  dispose  of  property  so  reserved  to  her,  in 
favour  of  her  husband.  Since  the  Married  Women's  Property  Act, 
1882,  these  ante-nuptial  contracts  between  man  and  woman  would 
have  full  force  to  them  whether  in  equity  or  at  law. 

§  1372.  In  regard  to  contracts  made  between  husband  and  wife 
after  marriage,  a  fortiori  the  principles  of  the  common  law  applied 
to  pronounce  them  a  mere  nullity ;  for  there  was  deemed  to  be  a 
positive  incapacity  in  each  to  contract  with  the  other.  But  here 
again,  although  courts  of  equity  followed  the  law,  they  could,  under 
particular  circumstances,  give  full  effect  and  validity  to  post-nuptial 
contracts.     Thus,,  for  example,   if  a  wife,  having  a  separate   estate, 

(to)  Moore  v.  Ellis,  Bunb.  205;  Fursor  v.  Penton,  1  Vern.  408;  Cotton  v.  Cotton, 
Prec.  Ch.  41;  s.c.  2  Vern.  290,  and  Mr.  Eaithby'e  note. 

(«.)  Cannel  v.  Buckle,  2  P.  Will.  243,  244;  B.C.  8  Eden,  252  to  254. 

(o)  Schlencker  v.  Moxsy,  3  B.  &  C.  789;  Baber  v.  Harris,  9  A.  &  E.  532. 

(p)  Gage  v.  Acton,  1  Salk.  325;  s.c.  1  Ld.  Eaym.  516;  Milbourn  v.  Ewart,  5 
T.  E.  381. 

(g)  Fitzgerald  v.  Fitzgerald,  L.  E.  2  P.  C.  83. 

(r)  See  Rose  v.  Poulton,  2  B.  &  Ad.  822. 

(s)  Rippon  V.  Dawding,  Ambler  566,  and  Mr.  Blunt 's  note;  Prebble  v.  Boghurst, 

1  Swanst.  309. 

(t)  Fursor  v.  Penton,  1  Vern.  408,  and  Mr.  Eaithby'B  note;  Wright  v.  Cadogan, 

2  Eden,  252. 

E.J.  37 


578  EQUITY  JURISPRUDENCE.  [CH.  XXXVI. 

should,  bona  fide,  enter  into  a  contract  with  her  husband,  to  make 
him  a  certain  allowance  out  of  the  income  of  such  separate  estate  for 
a  reasonable  consideration,  the  contract,  althougfh  void  at  law,  was 
obligatory,  and  has  been  enforced  in  equity  (u).  So,  if  the  husband 
should,  after  marriage,  for  good  reasons  have  contracted  with  his 
wife,  that  she  should  separately  possess  and  enjoy  property  be- 
queathed to  her,  the  contract  would  have  been  upheld  in  equity  (x). 
So,  if  a  husband  and  wife  for  a  bona  fide  and  valuable  consideration, 
should  have  agreed  that  he  should  purchase  land  and  build  a  house 
thereon  for  her,  and  she  should  pay  him  therefor  out  of  the  proceeds 
of  her  own  real  estate;  if  he  should  perform  the  contract  on  his  side, 
she  also  would  have  been  compelled  to  perform  it  on  her  side  (y). 
Nay,  if  an  estate  were  devised  to  a  husband  for  the  separate  use  of  his 
wife,  it  was  considered  as  a  trust  for  the  wife,  and  he  would  be 
compelled  to  perform  it  {z). 

§  1373.  It  was  upon  similar  grounds,  that  a  wife  might  become 
a  creditor  of  her  husband,  by  acts  and  contracts  during  marriage ; 
and  her  rights,  as  such,  would  be  enforced  against  him  and  his 
representatives.  Thus,  for  example,  if  a  wife  should  have  united  with 
her  husband  to  pledge  her  estate,  or  otherwise  to  raise  a  sum  of  money 
out  of  it  to  pay  his  debts,  or  to  answer  his  necessities,  Whatever 
might  be  the  mode  adopted  to  carry  that  purpose  into  efiect,  the 
transaction  would,  in  equity,  have  been  treated  according  to  the  true 
intent  of  the  parties.  She  was  deemed  a  creditor  or  a  surety  for 
him  (if  so  originally  understood  between  them)  for  the'  sum  so  paid; 
and  she  was  entitled  to  reimbursement  out  of  his  estate,  and  to  the 
like  privileges  as  belong  to  other  creditors  (a). 

§  1374.  In  respect  also  to  gifts  or  grants  of  property  by  a  husband 
to  his  wife  after  marriage,  they  were,  ordinarily  (but  not  universally), 
void  at  law.  But  courts  of  equity  would  uphold  them  in  many  cases 
where  they  were  held  void  at  law;  although,  in  other  cases,  the 
rule  of  law  was  recognised  and  enforced.  Thus,  for  example,  if  a 
husband  should,  by  deed,  have  granted  all  his  estate  or  property  to 
his  wife,  the  deed  was  held  inoperative  in  equity,  as  it  would  be  in 
law;  for  it  could  in  no  just  sense  be  deemed  a  reasonable  provision 
for  her  (w'hich  was  all  that  courts  of  equity  held  the  wife  entitled 
to);  and,  in  giving  her  the  whole,  he  would  surrender  all  his  own 
interest  (6). 

(u)  More  v.  Freeman,  Bunb.  205. 

{x)  Harvey  v.  Harvey,  1  P.  Will.  125,  126;  s.o.  2  Vern.  659,  760,  and  Mr. 
Eaithby's  note. 

(y)  Townshend  v.  Windham,  2  Ves.  Sen.  7. 

(z)  Barley  v.  Darley,  3  Atk.  399;  Rich  v.  Cockell,  9  Ves.  375;  post,  §  1380. 

(o)  Jackson  v.  Innes,  1  Bligh,  104.  See  now  the  Married  Women's  Property 
Act,  B.  8. 

(b)  Beard  v.  Beard,  3  Atk.  71. 


§  1373 — 1375a.]  married    womek.  579 

§  1375.  But,  on  the  other  hand,  if  the  nature  and  circumstances 
of  the  gift  or  grant,  whether  it  be  express  or  implied,  were  such  that 
there  was  no  ground  to  suspect  fraud,  and  it  amounted  only  to  a 
reasonable  provision  for  the  wife,  it  would,  even  though  made  after 
coverture,  be  sustained  in  equity  (c).  Thus,  for  example,  gifts,  made 
by  the  husband  to  the  wife  during  the  coverture,  to  purchase  clothes, 
or  personal  ornaments,  or  for  her  separate  expenditure  (commonly 
called  pin-money),  and  personal  savings  and  profits  made  by  her  in  her 
domestic  management,  which  the  husband  allowed  her  to  apply  to  her 
own  separate  use  {d),  were  held  to  vest  in  her,  as  against  her  husband 
(but  not  as  against  his  creditors),  an  imimpeachable  right  of  property 
therein,  as  her  exclusive  and  separate  estate  (e).  It  is  true  that 
courts  of  equity  required  evidence  to  establish  such  gifts  as  a  matter 
of  intention  and  fact;  but,  when  that  was  established,  full  effect  will 
be  given  to  them  (ee). 

§  1375a.  Pin-money  is  a  very  peculiar  sort  of  gift  for  a  particular 
purpose  and  object,  and,  whether  it  is  secured  by  a  settlement  or 
otherwise,  it  is  still  required  to  be  applied  to  those  purposes  and 
objects  (/).  It  is  not  deemed  to  be  an  absolute  gift,  or,  as  it  is  some- 
times said,  out  and  out,  by  the  husband  to  the  wife.  It  is  not 
considered  like  money  set  apart  for  the  sole  and  separate  use  of  the 
wife  during  coverture,  excluding  the  jus  mariti.  But  it  is  a  sum  set 
apart  for  a  specific  piurpose,  due,  or  given  to,  the  wife,  in  virtue  of  a 
particular  arrangement,  payable  and  paid  by  the  husband  in  virtue 
of  that  arrangement,  and  for  that  specific  purpose.  Pin-money  is  a 
sum  paid  in  respect  to  the  personal  expense  of  his  wife,  for  her  dress 
and  pocket-money;  and  hence,  as  the  very  name  seems  to  import,  it 
has  a  connection  with  her  person,  and  is  to  deck  and  attire  it.  The 
husband,  therefore,  as  well  as  the  wife,  may  be  said  to  have  an 
interest  in  it;  for  the  wife  is  to  dress  (it  has  been  said)  according  to 
his  rank,  and  not  her  own.  It  is  upon  this  ground  that  courts  of 
equity  refuse  to  go  back  to  call  upon  the  husband  to  pay  beyond  the 
arrears  of  a  year,  although  stipulated  for  by  a,  marriage  settlement; 
for  the  money  is  meant  to  dress  the  wife  during  the  year,  so  as  to 
keep  up  the  dignity  of  the  husband,  and  not  for  the  accumulation  of 
the  fund.  This  provides  a  check  and  control  to  the  husband.  It 
prevents  the  wife  from  misspending  the  money.  It  secures  the 
appropriation  of  the  money  to  its  natural  and  original  purpose.  It 
is  vidth  this  view,  quite  as  much  as  on  account  of  the  presumed 
satisfaction  by  acquiescence,   that  courts  of  equity  have  established 

(c)  Walter  v.  Hodge,  2  Swanst.  106,  107;  Lucas  v.  Lucas,  1  Atk.  270,  271. 

(d)  Slanning  v.  Style,  3  P.'  Will.  337. 

(e)  Sir  Paul  Neal's  case,  cited  in  Prec.  Ch.  44;  Lucas  v.  Lucas,  1  Atk.  270; 
Graham  v.  Londonderry,  3  Atk.  393  to  395. 

(ee)  Lloyd  v.  Pughe,  L.  E.  8  Oh.  88. 
(/)  Jodrell  V.  Jodrell,  9  Beav.  45 


580  EQUITY  JURISPRUDENCE.  [CH.  XXXVI. 

the  principle  above  stated,  not  to  allow  the  wife  to  claim  pin-money 
beyond  the  yeM'.  On  the  same  ground  it  is,  that  the  personal  repre- 
sentatives of  the  wife  are  not  allowed  to  make  any  claim  for  the 
arrears  of  pin-money,  not  even  for  arrears  of  a  year;  for  the  allow- 
ance has  a  sole  regard  to  the  personal  dress  and  expenses  of  the  wife 
herself  during  that  period.  And  hence,  also,  it  is,  that  if  the  wife 
becomes  insane,  and  remains  so  until  her  death,  if  the  husband  has 
maintained  her,  and  taken  suitable  care  of  her,  according  to  her  rank 
and  condition,  courts  of  equity  will  not  allow  her  personal  repre- 
sentatives to'  make  any  claim  for  any  arrearages  of  pin-money,  even 
secured  by  a  marriage  settlement  (g). 

§  1376.  Under  the  like  consideration,  in  a  great  measure,  falls  the 
right  of  the  wife  to  her  paraphernalia;  a  term  originally  of  Greek 
derivation  (where  it  means  something  reserved  over  and  above  dower, 
or  a  dotal  portion),  and  aiterwards  imported  into  the  civil  law,  and 
from  thence  adopted  into  the  language  or  the  common  law  (h),  in 
which  it  includes  all  the  personal  apparel  and  ornaments  of  the  wife, 
which  she  possesses,  and  which  are  suitable  to  her  rank  and  condition 
in  life  (i).  The  husband  in  his  lifetime  may  dispose  of  her 
paraphernalia,  excepting,  indeed,  her  necessary  apparel ;  and  they  are 
liable  to  the  claims  of  creditors,  with  the  like  exception  (k).  But  the 
wife  is  entitled  to  her  paraphernalia  against  his  representatives;  for 
the  husband  cannot  by  will  dispose  of  them,  or  leave  them  to  his 
representatives  (l).  The  court  fully  recognise  this  right  of  the  husband 
and  his  creditors ;  although  in  case  of  the  latter,  if  there  are  any  other 
assets  of  the  husband,  they  will,  after  his  death,  be  marshalled  against 
his  representatives  in  favour  of  the  widow  (m). 

§  1377.  There  is,  however,  a  distinction  upon  this  subject  of 
paraphernalia,  which  is  entitled  to  consideration.  Where  the  husband, 
either  before  or  after  marriage,  gives  to  his  wife  articles  of  paraphernal 
nature,  they  are  not  treated  as  absolute  gifts  to  her,  as  her  own 
separate  property ;  for,  if  they  were,  she  might  dispose  of  them  at  any 
time,  and  he  could  not  appropriate  them  to  his  own  use.  But  they 
are  deemed  as,  technically,  paraphernalia  to  be  worn  by  the  wife  as 
ornaments  of  her  person;  and  so  to  be  deemed  gifts  suh  modo  only  (n). 

(g)  Howard  v.  Earl  of  Digby,  2  CI.  &  P.  634;  s.c.  8  Bligh  N.  S.  324;  post, 
§  §  1396,  1425. 

(h)  Si  res  dentur  in  ea,  quae  Graeci  irapiiptpva  dicvint,  quae  Galli  peculium 
appellant.  Dig.  Lib.  23,  tit.  3,  f.  9,  §  3.  Aa  to  these  the  Code  declared  :  "  Ut  vir  in 
his  rebus,  quas  extra  dotem  mulier  habet,  quas  Grseci  irapcfi^cpva  dicvint,  nuUam 
uxore  prohibente  habeat  communionem,  nee  aliqnam  ei  necessitatem  imponat,  &c. 
Nnllo  modo  (ut  dictum  est)  muliere  prohibente,  virum  in  paraphernis  se  volumus 
immiscere."    Cod.  Lib.  5,  tit.  14,  1.  8.  (t)  2  Black.  Comm.  435. 

(k)  2  Black.  Comm.  435,  436.     Lord  Townshend  v.  Windham,  2  Ves.  1. 

(0  Tipping  v.  Tipping,  1  P.  Will.  729;  Seymore  v.  Tresilian,  3  Atk.  358. 

(m)  Ante,  §  568;  Tipping  v.  Tipping,  1  P.  Will.  729;  Tynt  v.  Tynt,  2  P.  Will. 
542,  544,  and  Mr.  Cox's  note  (1) ;  Probert  v.  Clifford,  Ambler  6,  and  Mr.  Blunt's  note. 

(n)  Ridout  v.  Earl  of  Plymouth,  2  Atk.  104. 


§    1376 1381.]  MARRIED    WOMEN.  581 

But,  if  the  like  articles  were  bestowed  upon  her  by  a  father,  or  by  a 
relative,  or  even  by  a  stranger,  before  or  after  marriage,  they  would 
be  deemed  absolute  gifts  to  her  separate  use;  and  then,  if  received 
wiiii  the  consent  of  her  husband,  he  could  not,  nor  could  his  creditors, 
dispose  of  them  any  more  than  they  could  of  any  other  property 
received  and  held  to  her  separate  use  (o). 

§  1378.  In  the  next  place,  as  to  the  manner  in  which  a  married 
woman  might  acquire  a  separate  estate,  and  as  to  her  powers  and 
interests  therein.  It  is  well  known  that  the  strict  rules  of  the  old 
common  law  would  not  permit  the  wife  to  take  or  enjoy  any  real  or 
personal  estate  separate  from  or  independent  of  her  husband.  On 
the  other  hand,  courts  of  equity,  for  a  great  length  of  time,  admitted 
the  doctrine,  that  a  married  woman  is  capable  of  taking  real  and 
personal  estate  to  her  own  separate  and  exclusive  use ;  and  that  she 
has  also  an  incidental  power  to  dispose  of  it. 

§  1379.  The  power  to  hold  real  and  personal  property  to  her  own 
separate  and  personal  use,  might  be,  and  often  was,  reserved  to  her 
by  marriage  articles,  or  by  an  actual  settlement  made  before  marriage ; 
and,  in  that  case,  the  agreement  became  completely  obligatory  between 
the  parties  after  marriage,  and  regulated  their  future  rights,  interests, 
and  duties.  In  like  manner,  real  and  personal  property  might  be 
secured  for  the  separate  and  exclusive  use  of  a  married  woman  after 
marriage ;  and  thus  the  arrangement  might  acquire  a  complete 
obligation  between  the  parties. 

§  1380.  It  was  formerly  supposed  that  it  was  necessary,  that 
the  property,  of  which  the  wife  was  to  have  the  separate  and  exclusive 
use,  should  be  vested  in  trustees  for  her  benefit ;  or  that  the  agreement 
of  the,  husband  should  be  made  with  persons  capable  of  contracting 
with  him  as  trustees  for  her  benefit.  But,  although  this  course  was 
and  is  always  pursued  in  formal  settlements,  yet  it  has  been 
established  for  more  than  two  centuries,  in  courts  of  equity,  that  the 
intervention  of  trustees  is  not  indispensable;  and  that,  whenever  real 
or  personal  property  was  given  or  devised,  or  settled  upon  a  married 
woman,  either  before  or  after  marriage,  for  her  separate  and  exclusive 
use,  without  the  intervention  of  trustees,  the  intention  of  the  parties 
should  be  effectuated  in  equity,  and  the  wife's  interest  protected 
against  the  marital  rights  and  claims  of  her  husband,  and  of  his 
creditors  also.  In  all  such  cases,  the  husband  was  held  a  mere  trustee 
for  her  (p);  or  restrained  by  injunction  from  interfering  with  the 
property  (g). 

§  1381.  The  reports  contain  a  number  of  cases  dealing  with  the 
construction  of  instruments  in  which  conveyancers,  instead  of  simply 


<o)  Graham  v.  Londonderry,  3  Atk.  393. 

<p)  Rich  v.  Cockell,  9  Vea.  369. 

(g)  Green  v.  Green,  5  Hare,  400  n;  Wood  v.  Wood,  19  W.  E.  1049. 


582  EQUITY  JURISPRUDENCE.  [CH.  XXXVI. 

employing  the  words  "  separate  use  "  had  misdirected  their  energies 
in  framing  what  they  deemed  to  be  equivalents,  often  to  the  dis- 
appointment of  those  who  had  employed  them.  There  seems  little  us© 
in  retaining  cases  of  construction  in  an  elementary  treatise,  the  more 
so  as  the  difficulty  is  disposed  of  by  the  Married  Women's  Property 
Act,  1882. 

§  1384.  In  fact  as  well  as  in  law  a  separate  use  is  only  compatible 
with  an  existing  marriage.  It  was  formerly  doubted  if  a  gift  to  the 
use  of  an  unmarried  woman  could  effectively  be  made,  but  it  was 
finally  settled  that  although  in  abeyance  it  sprung  into  existence  on 
each  marriage  (r),  unless  limited  to  a  particular  coverture  (s). 

§  1385.  Cases  also  occurred  in  certain  ancient  cities  of  a  separate 
estate,  and  even  of  a  separate  liability  of  a  wife,  of  a  more  enlarged 
nature.  But  as  it  was  a  law  of  local  (t),  and  not  of  general,  apphcation 
it  is  unnecessary  to  consider  its  incidents.  Since  the  Married 
Women's  Property  Act,  1882,  a  wife  may  carry  on  a  separate  trade 
from  her  husband,  with  the  ordinary  risks  attaching  to  such  trading, 
one  of  which  is  liability  to  be  made  a  bankrupt  (s.  1,  sub-ss.  1,  2, 
and  5). 

§  1386.  Where  th'6  agreement  for  a  separate  trade  by  the  wife 
occurred  after  marriage,  and  it  was  founded  upon  a  valuable  con- 
sideration, the  like  protection  was  given  a.t  law,  if  the  property  were 
vested  in  trustees ;  and  the  property,  and  the  income  and  profits 
thereof,  was  held  secure  for  the  wife  against  the  husband  and  his 
creditors.  A  fortiori,  the  doctrine  was  enforced  in  equity.  But  if  it 
were  a  voluntary  agreement,  it  would  be  good  against  the  husband 
only,  and  not  against  his  creditors.  Care,  however,  had  to  be  taken 
in  all  these  cases,  that  the  negotiations  were  not  carried  on  in  the 
name  of  the  wife,  as  by  taking  notes  or  other  securities  in  her  name ; 
for  then  they  would,  at  law,  have  been  held  to  belong  to  the  husband, 
although  in  equity  it  was  otherwise. 

§  1387.  We  here  perceive  that  the  law  would  give  effect  to  such 
agreements,  only  when  those  forms  had  been  observed  which  would 
vest  the  property  in  parties  capable  of  enforcing  the  proper  rights  of 
the  wife  in  legal  tribunals;  as  was  the  case  where  the  property  was 
vested  in  trustees  for  her  sole  use  and  benefit,  in  order  to  enable  her 
to  carry  on  trade.  But  courts  of  equity  went  further;  and  if  there 
were  any  such  agreement  before  marriage,  resting  in  articles  and' 
without  trustees,  by  which  she  was  permitted  to  carry  on  business  on 
her  sole  and  separate  account;  or  if,  without  any  such  ante-nuptial? 
agreement,  the  husband  should  have  permitted  her,  after  marriage,  to 
carry  on  business  on  her  sole  and  separate  account;  all  that  she  earned 

(r)  Tullett  v.  Armstrong,  4  Myl.  &  Cr.  377. 
(s)  Stogdon  v.  Lee,  [1891]  1  Q.  B.  661. 
(t)  See  Tyson  v.  Smith,  9  A.  &  E.  406. 


§    1384 1390.]  MARRIED     WOMEN.  583 

in  trade  was  deemed  to  be  her  separate  property,  and  disposable  by  her 
as  such,  subject,  however,  to  the  claims  of  third  persons  properly 
affecting  it.  In  the  former  case,  the  earnings  would  be,  in  equity, 
protected  for  her  separate  use  against  her  husband  and  his  creditors; 
in  the  latter,  against  him  only,  unless  the  permission  after  marriage 
arose  from  a  valuable  consideration.  So,  if  a  husband  should  have 
deserted  his  wife,  and  she  should  have  been  enabled,  by  the  aid  of 
her  friends,  to  carry  on  a  separate  trade  (as  that  of  a  milliner),  her 
earnings  in  such  trade  were  enforced  in  equity  against  the  claims  of 
her  husband. 

§  1388.  It  remains  to  say  a  few  words  on  the  subject  of  the  wife's 
power  to  dispose  of  her  separate  property,  and  of  its  liability  for  her 
contracts  and  d^bts.  Wherever  a  trust  was  created,  or  a  power  was 
reserved  by  a  settlement,  to  enable  the  wife  after  marriage  to  dispose 
of  her  separate  property,  either  real  or  personal,  it  might  be  executed 
by  her  in  the  very  manner  provided  for,  whether  it  were  by  deed  or 
other  writing,  or  by  a  will  or  appointment.  And  courts  of  equity 
would,  in  all  cases,  enforce  .against  heirs,  devisees,  and  trustees,  as 
well  as  against  the  husband  and  his  representatives,  the  rights  of  the 
donee  or  appointee  of  the  wife.  But,  where  no  such  settlement, 
trust,  or  power  was  created  before  marriage,  but  it  rested  in  a  mere 
agreement  between  the  husband  and  wife,  it  was  formerly  a  matter 
of  doubt,  whether  the  wife  could  dispose  of  her  separate  real  estate, 
so  as  effectually  to  bind  it;  although  it  was  admitted  that  she  had  a 
full  power  to  dispose  of  her  personal  estate. 

§  1389.  The  distinction,  and  the  reasons  for  it,  are  very  clearly 
stated  by  Lord  Hardwicke  (u). 

§  1390.  But  this  doubt,  however  powerfully  urged  upon  technical 
principles,  was  overcome;  and  the  doctrine  was  firmly  established  by 
the  highest  authority,  that,  in  such  a  case,  courts  of  equity  would 
compel  the  heir  of  the  wife  to  make  a  conveyance  to  the  party  in 
whose  favour  she  had  made  a  disposition  of  the  real  estate ;  in  other 
words,  he  was  treated  as  a  trustee  of  the  donee,  or  appointee  of  the 
wife.  So,  that  it  may  now  be  laid  down  as  a  general  rule,  that  all 
ante-nuptial  agreements  for  securing  to  a  wife  separate  property, 
would,  unless  the  contrary  is  stipulated  or  implied,  give  her  in  equity 
the  full  power  of  disposing  of  the  same,  whether  real  or  personal,  by 
any  suitable  act  or  instrument  in  her  lifetime,  or  by  her  last  will,  in 
the  same  manner,  and  to  the  same  extent,  as  if  she  were  a  feme 
sole  (x).  And  in  all  cases  where  a  power  for  this  purpose  was  reserved 
to  her  by  means  of  a  trust,  which  is  created  for  the  purpose,   she 

(«)  Peacock  v.  Monk,  2  Ves.  Sen.  191. 

{x)  Wright  V.  Gadogan,  6  Bro.  Pari.  C.  156;  s.c.  Ambler,  468;  Hulme  v.  Tenant, 
1  Bro.  C.  0.  20;  Taylor  v.  Meads,  i  De  G.  J.  &  S.  597. 


584  EQUITY  JURISPRUDENCE.  [CH.  XXXVI. 

might  execute  the  power  without  joining  her  trustees,  unless  it  was 
made  necessary  by  the  instrument  of  trust  (y). 

§  1391.  In  regard  to  the  power  of  the  wife  to  dispose  of  her 
separate  property,  where  no  trust  was  interposed,  but  it  rested 
merely  upon  a  post-nuptial  agreement  of  the  husband,  there  was  a 
material  distinction,  whether  it  were  personal  estate,  or  whether  it 
were  real  estate.  In  the  former  case,  her  power  to  dispose  of  it 
could  affect  her  husband's  right  only;  and  therefore  his  assent  was 
conclusive  upon  him.  But  it  was  very  different  in  respect  to  her 
real  estate ;  for,  here  her  own  heirs  were  or  might  have  been 
deeply  affected  in  their  interests  by  descent.  Now,  by  the  general 
principles  of  the  common  law,  a  married  woman  was,  during  her 
coverture,  disabled  from  entering  into  any  contract  respecting  her 
real  property,  either  to  bind  herself  or  to  bind  her  heirs.  And  this 
disability  could  be  overcome  only  by  adopting  the  precise  means 
allowed  by  law  to  dispose  of  her  real  estate.  It  is  true  that  the 
husband,  by  his  own  post-nuptial  agreement  with  his  wife,  might  have 
bound  his  own  interest  to  her  real  estate,  and  have  converted  himself 
into  a  trustee  for  her  {z).  But  he  could  not  trench  upon  the  rights  of 
her  heir,  who  was  no  party  to  such  an  agreement.  And,  under  such 
circumstances,  the  latter  would  take  her  real  estate  by  descent, 
unaffected  by  any  of  the  trusts  springing  from  the  agreement. 

§  1392.  The  remarks  which  have  been  made,  applied  to  the  case 
of  the  real  estate  of  the  wife,  already  vested  in  her,  as  affected  by 
her  own  ante-nuptial  or  post-nuptial  agreement  with  her  husband. 
But  the  question  might  have  arisen,  as  to  her  rights  and  power  over 
real  estate,  which  was  given  by  a  third  person  to  her,  during  her 
coverture,  for  her  separate  use,  with  a  power  to  dispose  of  the  same, 
where  no  trustees  were  interposed  to  protect  the  exercise  of  the 
power.  As  to  this,  the  received  doctrine  seems  to  have  been,  that 
if  an  estate  were,  during  coverture,  given  to  a  married  woman  and 
her  heirs  for  her  separate  use,  without  more,  she  had  the  same 
power  of  disposition  over  it,  whether  by  deed  or  will,  as  if  she  were 
a  feme  sole  (a). 

§  1393.  As  to  personal  property,  and  the  income  of  real  property, 
we  have  already  seen,  that,  if  they  were  given  for  the  separate  use  of 
a  married  woman,  she  had,  in  equity,  a  full  power  to  dispose  of  them 
at  her  pleasure  (b).  But,  qualifications  might  have  been  attached  to 
the  gift,  which  could  control  this  absolute  power;  and,  on  the  other 
hand,  this  absolute  power  might  have  existed,  notwithstanding  words 
might  have  accompanied  the  gift  which  might  have  seemed,  prima 
facie,  intended  to  confer  the  power  sub  modo,  only.     Thus,   for  ex- 

(y)  Grigby  v.  Cox,  1  Ves.  Sen.  517;  Essex  v.  Atkins,  14  Ves.  547. 
(z)  Major  v.  Lansley,  2  Euss.  &  M.  355. 

(a)  Taylor  v.  Meads,  4  De  G.  J.  &  S.  597. 

(b)  Hulme  v.  Tenant,  1  Bro.  C.  C.  20;  Major  v.  Lansley,  2  Russ.  355. 


§    1391 1396.]  MARRIED     WOMEN.  585 

ample,  if  there  were  an  express  limitation  to  a  married  woman  for 
life,  with  a  power  to  dispose  of  the  samie  property  by  will;  there,  her 
interest  would  be  deemed  a  partial  interest,  and  equivalent  to  a  life- 
estate  only;  and  she  could  not  dispose  of  the  property  absolutely, 
except  in  the  manner  prescribed  by  the  power  (c). 

§  1394.  On  the  other  hand,  where  personal  property  was  expressly 
given  to  a  married  woman,  "  to  her  for  her  sole  and  separate  use," 
without  saying,  for  life;  and  she  was  further  authorized  to  dispose  of 
the  same  by  will ;  the  gift  was  construed  to  confer  on  her  the  absolute 
property,  and,  consequently,  as  conferring  a  power  to  dispose  of  it 
otherwise  than  by  will;  for,  the  absolute  property  being  given,  the 
power  became  nugatory,  and  was  construed  to  be  nothing  more  than 
an  anxious  expression  of  the  donor,  that  she  might  have  an  un- 
controlled power  of  disposing  of  the  property  (d). 

§  1395.  A  married  woman  having  this  general  power  of  disposing 
of  her  separate  property,  the  question  naturally  arose,  whether  she 
might  bestow  it  by  appointment,  or  otherwise,  upon  her  husband ;  or 
whether  the  legal  disability  attached  to  such  a  transaction.  Upon 
this  subject  the  doctrine  was  firmly  established  in  equity,  that  she 
might  bestow  her  separate  property)  by  appointment  or  otherwise, 
upon  her  husband,  as  well  as  upon  a  stranger.  But,  at  the  same 
time,  courts  of  equity  examined  every  such  transaction  between 
husband  and  wife  with  an  anxious  watchfulness,  and  caution,  and 
dread  of  undue  influence ;  and  if  they  were  required  to  give  sanction 
or  effect  to  it,  they  would  examine  the  wife  in  court,  and  adopt  other 
precautions  to  ascertain  her  unbiassed  will  and  wishes  (e). 

§  1396.  Courts  of  equity  would  not  only  sanction  such  a  disposi- 
tion of  the  wife's  separate  property  in  favour  of  her  husband,  when 
already  made,  but  they  would  also  in  proper  cases,  upon  her  applica- 
tion and  consent,  given  in  court,  decree  such  property  to  be  passed  to 
her  husband,  whether  it  were  in  possession  or  reversion,  in  such  a 
manner  as  she  should  prescribe.  In  the  same  way,  her  separate 
estate  might  be  charged  with  and  made  liable  for  his  debts.  But 
courts  of  equity  had  no  authority,  even  with  the  consent  of  the  wife, 
to  transfer  to  the  husband  any  property,  secured  to  her  sole  and 
separate  use  for  life,  where  no  power  of  disposition  was  reserved  to 
her  over  the  property,  or  beyond  the  power  reserved  to  her  (/).  And, 
therefore,  if  the  husband  should  receive  such  property,  he  would 
ordinarily  be  compelled  to  account  therefor.  The  same  rule  was 
applied  where  the  husband  had  by  a  settlement  contracted  to  allow  a 

(c)  Sugden,  Powers,  chap,  v.,  sect.  1. 

(d)  Elton  V.  Shephard,  1  Bro.  C.  C.  532,  and  Mr.  Belt's  note.  And  see  Richards 
V.  Chambers,  10  Ves.  584. 

(e)  Dynock  v.  Atkinson,  3  Bro.  C.  C.  195 ;  Murray  v.  Lord  Elibank,  10  "Ves.  89 ; 
Osborn  v.  Morgan,  9  Hare,  432. 

(/)  Richards  v.  Chambers,  10  Ves.  580. 


586  EQUITY  JURISPRUDENCE.  [CH.  XXXVI. 

specific  annual  sum  (not  pin-money)  for  her  sole  and  separate  use,  as, 
for  example,  £100  or  £1,000  a  year;  for,  in  such  cases,  if  he  did  not 
pay  it,  he  would  be  held  liable  for  the  arrears  (g).  Where,  indeed,  the 
husband,  with  the  consent  of  his  wife,  is  in  the  habit  of  receiving  the 
income,  profits,  and  dividends  of  her  separate  estate,  courts  of  equity 
regard  the  transaction  as  showing  her  voluntary  choice,  thus  to  dispose 
of  it  for  the  use  and  benefit  of  the  family,  and  an  absolute  gift  (h). 

§  1397.  In  the  next  place,  let  us  examine  how  far  the  separate 
property  of  the  married  woman  was  liable  for  any  contracts,  debts,  or 
other  charges  created  by  her  during  her  coverture.  At  law,  she  was, 
during  her  coverture,  generally  incapable  of  entering  into  any  valid 
contract  to  bind  either  her  person  or  her  estate  (t).  In  equity,  also, 
it  was  clearly  established  that  she  could  not  by  contract  bind  her 
person  or  her  property  generally.  The  only  remedy  allowed  was 
against  her  separate  property  (fc).  The  reason  of  this  distinction 
between  her  separate  property  and  her  other  property  is  that,  as  to  the 
former,  she  was  treated  as  a  feme  sole,  having  the  general  power  of 
disposing  of  it;  but,  as  to  the  latter,  all  the  legal  disabilities  of  a  feme 
covert  attached  upon  her  (l). 

§  1398.  The  doctrines  maintained  by  courts  of  equity,  as  to  the 
nature  and  extent  of  the  liability  of  the  separate  estate  of  a  married 
woman  for  her  debts  and  other  charges  created  during  her  coverture 
were,  after  great  discussion  and  variation  of  judicial  opinion,  finally 
settled  as  follows,  that  a  married  woman,  having  separate  estate, 
would  be  liable  so  far  as  that  separate  estate  extended,  not  only  in 
so  far  as  related  to  all  the  debts,  charges,  incumbrances,  and  other 
engagements  which  she  expressly,  or  by  implication,  charged  on  that 
separate  estate,  but  also  to  all  her  general  engagements,  in  whatever 
way  these  engagements  were  created,  and  whether  in  making  them 
her  separate  estate  was  referred  to  or  not  (rw). 

§  1402.  In  the  next  place,  let  us  proceed  to  the  consideration  of 
what  was  commonly  called  the  equity  of  a  wife  to  a  settlement  out  of 
her  own  property.  It  is  well  known,  that,  at  the  common  law,  mar- 
riage amounted  to  an  absolute  gift  to  the  husband  of  all  the  goods, 
personal  chattels,  and  other  personal  estate  of  which  the  wife  was 
actually  or  beneficially  possessed  at  that  time,  in  her  own  right,  and 
of  such  other  goods,  personal  chattels,  and  personal  estate  as  came  to 
her  during  the  marriage.     But  to  her  chases  in  action,  such  as  debts 

(3)  Howard  v.  Digby,  8  Bligh  N.  S.  i224,  257,  258. 

(h)  Squire  v.  Dean,  i  Bro.  C.  C.  326;  Caton  v.  Ridout,  1  Mac.  &  G.  599;  In  re 
Flammank,  Wood  v.  Cock,  40  Ch,  D.  461. 

(i)  Marshall  v.  Button,  8  T.  E.  645. 

(fc)  Hulme  V.  Tenant,  1  Bro.  C.  C.  16,  and  Mr.  Belt's  note  (3). 

{I)  See  Stuart  v.  Lord  Kirkwall,  3  Mad.  387;  Owens  v.  Dickenson,  1  Cr.  &  Phil. 
48. 

(m)  Hulme  v.  Tenant,  1  Bro.  C.  C.  16;  Johnson  v.  Gallagher,  3  De  G-.  P.  &  J. 
404 ;  The  London  Chartered  Bank  of  Australia  v.  Lempriire,  L.  E.  6  P.  C.  572. 


§    1397 — 1404.]  MARRIED     WOMEN.  587 

due  by  obligation,  or  by  contract,  or  otherwise,  the  husband  was  not 
absolutely  entitled,  unless  they  were  reduced  into  possession  during 
her  life.  In  regard  to  chattels  real,  of  which  the  wife  was  or  might 
be  possessed  during  the  coverture,  the  husband  had  a  qualified  title. 
He  had  an  interest  therein  in  her  right;  and  he  might,  by  his  aliena- 
tion during  the  coverture,  absolutely  deprive  her  of  her  right  therein. 
But  if  he  did  not  aliene  them  she  was  entitled  to  them,  if  she  survived 
him ;  and,  if  he  survived  her,  he  was  entitled  to  them  in  virtue  of  his 
marital  rights. 

§  1403.  These  general  explanations  of  the  state  of  the  common 
law,  as  to  the  respective  rights  of  husband  and  wife  in  regard  to  her 
personal  property,  are  sufficient  to  enable  us  to  understand  the  origin, 
nature,  and  character  of  the  wife's  equity  to  a  settlement.  We  have 
already  seen  the  protective  power  which  courts  of  equity  exerted  to 
preserve  the  control  and  disposition  of  married  women  over  property 
secured  or  given  to  their  separate  use,  and  also  to  preserve  the  rights 
and  interests'  of  wards  of  the  court.  Whenever  the  husband  reduced 
the  personal  estate  of  his  wife,  of  whatever  original  nature  it  might 
be,  whether  legal  or  equitable,  into  possession,  he  became  thereby  the 
absolute  owner  of  it,  and  might  dispose  of  it  at  his  pleasure.  And 
this  being  the  just  exercise  of  his  legal  marital  rights,  courts  of  equity 
would  not  interfere  to  restrain  or  limit  it.  Wherever,  also,  he  was 
pursuing  the  common  remedies  at  law,  for  the  purpose  of  reducing 
such  personal  property  into  possession,  courts  of  equity  for  the  same 
reason  were,  or  at  least  (it  is  said)  ought  to  have  been,  ordinarily 
passive. 

§  1404.  The  principal  if  not  the  sole  cases  in  which  courts  of  equity 
interposed  to  secure  to  the  wife  her  equity  to  a  settlement  were,  first, 
where  the  husband  sought  aid  or  relief  in  a  court  of  equity  in  regard 
to  her  property;  secondly,  where  he  made  an  assignment  of  her  equit- 
able interests;  thirdly,  where  she  sought  the  like  relief,  as  plaintiff, 
against  her  husband,  or  his  assignees,  in  regard  to  her  equitable 
interests.  In  the  first  case,  the  court  laid  hold  of  the  occasion,  upon 
the  ground  of  the  maxim  that  he  who  seeks  equity  must  do  equity, 
to  require  the  husband  to  make  a  suitable  settlement  upon  the  wife 
(if  not  already  made)  out  of  that  property  or  some  other  property,  for 
her  due  maintenance  and  support,  in  case  of  her  survivorship,  according 
to  the  rank,  and  condition,  and  circumstances  of  the  parties  (n).  In 
the  second  case,  the  same  principle  was  applied  to  other  persons, 
claiming  under  the  husband,  as  to  himself.  In  the  third  case,  the 
doctrine  might  seem  more  artificial.  But  it  was,  in  truth,  enforcing 
against  the  husband  her  adinitted  equity  to  prevent  an  irreparable 
injustice  (o). 

(n)  Osborn  v.  Morgan,  9  Hare,  432. 

(o)  Lady  Elibank  v.  Montolieu,  5  Ves.  737. 


588  EQUITY  JURISPEUDENCE.  [CH.  XXXVI. 

§  1405.  The  general  theory  of  this  branch  of  equity  jurisprudence 
may  be  thus  succinctly  stated.  By  marriage  at  common  law  the 
husband  clearly  acquired  an  absolute  property  in  all  the  personal 
estate  of  his  wife,  capable  of  immediate  and  tangible  possession.  But 
if  it  were  such  as  could  not  be  reduced  into  possession,  except  by  an 
action  at  law,  or  by  a  suit  in  equity,  he  had  only  a  qualified  interest 
therein,  such  as  would  enable  him  to  make  it  an  absolute  interest  by 
reducing  it  into  possession.  If  it  were  a  chose  in  action,  properly  so 
called,  that  is,  a  right,  which  might  be  asserted  by  an  action  at  law, 
he  would  be  entitled  to  it,  if  he  had  actually  reduced  it  into  possession 
(for  a  judgment  waiS  not  sufficient)  in  his  lifetime.  But  if  it  were  a 
right,  which  must  have  been  asserted  by  a  suit  in  equity,  as  where  it 
was  vested  in  trustees  who  had  the  legal  property,  he  had  still  less 
interest.  He  could  not  reach  it  without  application  to  a  court  of 
equity,  in  which  he  could  not  sue  without  joining  her  with  him; 
although  perhaps  a  court  of  law  might  have  permitted  him  to  do  so, 
or  at  least  to  use  her  name  without  her  consent.  If  the  aid  of  a  court 
of  equity  were  asked  by  him  in  such  a  case,  it  would  make  him  provide 
for  her,  unless  she  consented  to  give  such  equitable  property  to  him  (p). 

§  1406.  It  was  called  the  wife's  equity,  because  she  could  waive 
it;  but  where  the  wife  insisted  upon  it,  and  a  settlement  had  been 
decreed,  it  was  the  invariable  practice  to  include  a  provision  for  the 
issue  of  the  marriage,  through  the  instrumentality  of  the  equity  of  the 
wife  (g).  This  equity  would  not  only  be  administered  at  the  instance 
of  the  wife  and  her  trustees,  but  also  where  the  husband  sued  in  equity 
for  her  property,  at  the  instance  of  her  debtor  (r).  We  shall  presently 
see  in  what  manner  the  wife  might  waive  the  right  to  such  a  settle- 
ment, and  what  would  be  the  effects  of  her  waiver  (s),  and  what  other 
circumstances  would  deprive  her  and  her  issue  of  the  right  (f). 

§  1407.  It  is  not  easy  to  ascertain  the  precise  origin  of  this  right 
of  the  wife,  or  the  precise  grounds  upon  which  it  was  first  established. 
It  has  been  said  that  it  was  an  equity,  grounded  upon  natural  justice ; 
that  it  was  that  kind  of  parental  care  which  a-  court  of  equity  exercises 
for  the  benefit  of  orphans,  and  that  as  a  father  would  not  have  married 
his  daughter  without  insisting  upon  some  provision,  so  a  court  of 
equity,  which  stands  in  loco  parentis,  would  insist  on  it  (m).  This  is 
not  so  much  a  statement  of  the  origin  as  it  is  of  the  effect  and  value  of 
the  jurisdiction.  The  truth  seems  to  be,  that  its  origin  cannot  be 
traced  to  any  distinct  source.     It  was  a  creature  of  a  court  of  equity, 

(p)  Dymock  v.  Atkinxon,  3  Bro.  C.  C.  195;  Murray  v.  Lord  Elibank,  10  Ves.  84; 
Osborn  v.  Morgan,  9  Hare,  432. 

(q)  Murray  v.  Lord  Elibank,  13  Ves.  1;  Lloyd  v.  Mason,  5  Hare,  149;  Wallace 
V.  Auldjo,  3  De  G.  J.  &  S.  643. 

(r)  Davy  v.  Pollard,  Finch  Ch.  377 ;  s.c.  1  Eq.  Abr.  64,  pi.  2. 

(s)  Dymock  v.  Atkinson,  3  Bro.  C.  C.  195;  In  re  Walker,  LI.  &  G.  t.  Sugd.  299. 

(t)  See  post,  §  1416. 

(u)  Jewson  v.  Moulson,  2  Atk.  419. 


§    1405 — 1410.]  MARRIED     WOMEN.  589 

and  stcxxi  upon  its  own  peculiar  doctrine  and  practice.  It  is  in  vain 
to  attempt,  by  general  reasoning,  to  ascertain  the  nature  or  extent  oE 
doctrine,  and  therefore  we  must  look  entirely  to  the  former  practice 
of  the  court  for  its  proper  foundation  and  extent  (x). 

§  1408.  And,  in  the  first  place,  a  settlement  would  be  decreed  at 
the  instance  of  the  wife  whenever  the  husband  sought  the  aid  or  relief 
of  a  court  of  equity  to  procure  the  possession  of  any  portion  of  his 
wife's  fortune  (y).  In  such  a  case,  it  was  of  no  consequence  whether 
the  fortune  accrued  before  or  during  the  marriage;  whether  the  pro- 
perty consisted  of  funds  in  the  possession  of  trustees,  or  of  third 
persons ;  or  whether  it  were  in  the  possession  of  the  court  or  under  its 
administration,  or  not;  for,  under  all  these  circumstances,  the  equity 
of  the  wife  would  equally  attach  to  it.  This  equity  of  the  wife  was  for 
a  long  time  supposed  to  be  confined  to  the  absolute  personal  property 
of  the  wife.  It  was  afterwards  extended  to  the  rents  and  profits  of 
the  real  estate,  in  which  she  had  a  life-interest,  although  it  was  not 
then  generally  extended,  as  against  the  husband  personally,  to  equitable 
interests,  in  which  she  had  a  life-estate  only.  Afterwards  it  acquired 
a  wider  range,  and  was  applied  to  all  cases  of  the  real  estate  of  the 
wife,  whether  legal  or  equitable,  where  the  husband  or  his  assignee 
was  obliged  to  come  into  a  court  of  equity  to  enforce  his  rights  against 
the  property  (z). 

§  1409.  There  were  some  exceptions  to  the  general  doctrine,  how- 
ever, which  deserve  notice.  In  the  first  place,  if  both  the  husband 
and  wife  were  subjects  of,  and  residents  in,  a  foreign  country,  where 
he  would  be  entitled  to  his  wife's  fortune  without  making  any  settle- 
ment upon  her,  in  such  a  case,  courts  of  equity,  sitting  in  another 
jurisdiction,  would,  as  to  personal  property  of  the  wife  within  their 
jurisdiction,  follow  the  local  law,  and  do  what  the  local  tribunals  would 
ordain  under  similar  circumstances;  for  the  rights  of  the  husband  and 
wife  are  properly  subject  to  the  local  law  of  their  own  sovereign  (a). 

§  1410.  Another  exception  was,  where  the  wife's  property  was  a 
leasehold  estate,  or  a  term  for  years,  held  in  trust  for  her.  In  such 
a  case,  it  has  been  said,  that  the  husband  might  assign  the  term  for 
a  valuable  consideration,  and  thereby  dispose  of  it,  without  the  wife 
having  any  claim  against  his  assignee;  and  if  he  did  not  dispose  of  it, 
there  was  some  doubt  whether  the  wife  had  any  equity  against  him  (b). 
It  is  extremely  difficult  to  perceive  the  exact  grounds  upon  which  this 
exception  rested.  It  constituted  a  seeming  anomaly,  resting  more 
upon  authority  than  principle ;  and,  as  such,  it  has  been  several  times 

(x)  Murray  v.  Lord  Elibank,  10  Ves.  90;  s.c.  13  Vea.  6. 
(y)  Osborn  v.  Morgan,  9  Hare,  432. 

(z)  Sturgis  v.  Champneys,  5  Myl.  &  Or.  97,  105  to  107;  Hanson  v.  Keating,  i 
Hare,  1;  Taunton  v.  Morris,  11  Ch.  D.  779. 

(a)  Campbell  v.  French,  3  Ves.  321. 

(b)  Turner's  Case,  1  Vem.  7. 


590  EQUITY  JURISPRUDENCE.  [CH.  XXXVI. 

doubted,  and  perhaps  ought  now  to  be  deemed  overruled  (c).  But, 
however  questionable  it  may  be  in  its  origin,  and  however  it  may  seem 
to  be  at  variance  with  the  received  doctrine,  in  other  analogous  cases 
of  assignment  by  the  husband,  it  has  had  no  inconsiderable  weight  of 
judicial  authority  in  its  favour.  It  has  even  been  carried  to  this 
extent,  that  the  husband  might  by  his  assignment  of  the  reversionary 
interest  in  a  term  of  years,  held  in  trust  for  the  wife,  bind  that  interest, 
so  as  to  deprive  her  of  her  equity  therein;  although  he  could  not,  in 
the  same  way,  dispose  of  her  reversionary  interest  in  any  choses  in 
action  or  persoHsl  chattels  (d).  The  sole  ground  of  the  doctrine  seems 
to  have  been,  that  the  husband  might  dispose  of  his  wife's  contingent 
reversionary  legal  interest  in  a  term  of  years,  and  that  there  is  no 
difference  in  equity,  between  the  legal  interests  in,  and  the  trusts  of  a 
term  for  years.  But  when  the  interest  of  the  wife  could  not  vest  in 
possession  until  after  the  death  of  the  husband,  as  the  husband  could 
not  claim  by  survivorship,  his  assignee's  title  was  postponed  to  that  of 
the  wife  (e). 

§  1411.  Secondly.  In  regard  to  the  wife's  equity  to  a  settlement, 
in  cases  where  the  husband  made  an  assignment  of  her  choses  in 
action,  or  other  equitable  interests.  It  was  long  settled,  that  the 
assignees  in  bankruptcy  or  insolvency  of  the  husband,  and  also  his 
assignees  for  the  payment  of  debts,  due  to  his  creditors  generally,  were 
bound  to  make  a  settlement  upon  the  wife  out  of  her  chases  in  action 
and  equitable  interests  assigned  to  them,  whether  they  were  absolute 
interests  or  life-interests  only  in  her,  in  the  same  way,  and  to  the  same 
extent,  and  under  the  same  circumstances,  as  he  would  be  bound  to 
make  one;  for  it  is  a  general  principle,  that  such  assignees  take  the 
property,  subject  to  aU  the  equities  which  affect  the  bankrupt,  or 
insolvent,  or  general  assignor.  Such  assignees  also  took  the  property, 
subject  to  the  wife's  right  of  survivorship,  in  case  the  husband  dies 
before  the  assignees  reduced  her  choses  in  action  and  equitable  interests 
into  possession  (/). 

§  1412.  The  principal  controversy  which  formerly  arose  was, 
whether  a  special  assignee  or  purchaser  from  the  husband,  for  a 
valuable  consideration,  of  her  choses  in  action,  or  equitable  interests, 
took  the  property  subject  to  the  same  liability  as  the  husband  to  make 
a  settlement  upon  the  wife  and  children,  and  it  was  held  that  he  was 
so  bound  if  the  wife  was  entitled  to  the  corpus  of  the  chose  in  action 
or  property,  but  not  if  she  was  entitled  to  the  income  (g). 

(c)  See  Mr.  Eaithby's  note  to  Turner's  Case,  1  Vern.  7;  Sturgis  v.  Champneys, 
5  Myl.  &  Cr.  97;  Hanson  v.  Keating,  i  Hare,  1;  In  re  Carr's  Trusts,  12  Bq.  609. 

(d)  Donne  v.  Hart,  2  Euss.  &  Myl.  360;  Honner  v.  Morton,  3  Euss.  65;  Purdew 
V.  Jackson,  1  Euss.  1. 

(e)  Duberly  v.  Day,  16  Beav.  33. 
(/)  Pierce  v.  Thornley,  2  Sim.  167. 

(51)  Tidd  V.  Lister,  3  De  G.  M.  &  G.  857  ;  Duncombe  v.  Greenacre,  2  De  G.  F.  &  J. 
509 ;  8.0.  at  the  hearing  29  Beav.  578 ;  In  re  Duffy's  Trust,  28  Beav.  386. 


§    1411 — =1417.]  MARRIED     WOMEN.  591 

§  1413.  In  respect  to  reversionary  choses  in  action,  and  other 
reversionary  equitable  interests  of  the  wife,  in  personal  chattels 
(although  not,  as  we  have  seen,  to  her  immediate  and  present  equitable 
interests  (h),  in  chattels  real),  the  doctrine  was  formerly  well  settled, 
and  in  a  manner  most  favourable  to  her  rights;  for  no  assignment  by 
the  husband,  with  her  consent,  even  when  she  joined  in  the  assign- 
ment, would  exclude  her  right  of  survivorship  in  such  cases  (?').  This 
was  altered  by  20  &  21  Vict.  c.  57,  which  entitled  her  with  the  concur- 
rence of  the  husband  to  alienate  her  reversionary  interests  in  personalty 
by  a  deed  acknowledged  before  Commissioners  as  in  the  Act  provided. 

§  1414.  Thirdly.  The  equity  of  a  wife  to  a  settlement  was  not 
only  enforced,  in  regard  to  her  choses  in  action  and  equitable  interests 
under  the  circumstances  above  mentioned,  against  the  husband  and 
his  assignees,  where  he  or  they  were  plaintiffs,  seeking  aid  and  relief 
in  equity;  but  it  was  also  enforced  where  she  or  her  trustee  brought  a 
suit  in  equity  for  the  purpose  of  asserting  it  (fc). 

§  1415.  We  have  seen,  that,  when  the  husband  came  into  a  court 
of  equity  for  relief,  as  to  any  property,  which  he  claimed  in  her  right 
jure  mariti,  he  would  be  obliged  to  submit  to  the  terms  of  the  court, 
and  make  a  settlement  or  provision  for  her,  otherwise  the  court  would 
not  render  him  any  assistance.  If  he  did  not  choose  to  make  any 
such  settlement  or  provision,  the  court  would  not,  ordinarily,  take 
from  him  the  income  and  interest  of  his  wife's  fortune,  so  long  as  he 
was  willing  to  live  with  her,  and  maintain  her,  and  there  was  no  reason 
for  their  living  apart  (l). 

§  1416.  Let  us  pass,  in  the  next  place,  to  the  consideration  of  the 
circumstances  under  which  this  equity  to  a  settlement  might  be  waived 
or  lost.  And  here,  it  need  scarcely  be  said,  that,  if  the  wife  were 
already  amply  provided  for,  under  a  prior  settlement,  the  very  motive 
and  ground  for  the  interference  of  a  court  of  equity  in  her  favour  was 
removed.  But  she  would  not,  ordinarily,  be  barred  by  an  inadequate 
settlement,  unless  it  were  by  an  express  contract  made  before 
marriage  (m). 

§  1417.  The  wife's  equity  for  a  settlement  was  generally  under- 
stood to  be  strictly  personal  to  her,  and  it  did  not  extend  to  her  issue, 
unless  it  had  been  asserted  in  judicial  proceedings  by  her  in  her  life- 
time. If,  therefore,  she  had  died,  entitled  to  any  equitable  interest, 
and  left  her  husband,  and  her  children  were  unprovided  for  by  any 
settlement,  still,  her  husband  would  be  enabled  to  file  a  bill  to  recover 
the   same,   without   making   any   provision   for  the   children    (n).     In 

(h)  Ante,  §  1410.  (t)  Purdew  v.  Jackson,  1  Euss.  1. 

(ft)  Sturgis  v.  Champneys,  5  Myl.  &  Or.  97. 
(I)  Eedes  v.  Eedes,  11  Sim.  669. 
(to)  Giacommetti  v.  Prodgers,  li.  E.  8  Ch.  App.  338. 

(n)  Murray  v.  Lord  EUbank,  13  Ves.  1 ;  Lloyd  v.  Mason,  6  Hare,  149 ;  Wallace  v. 
Auldjo,  3  De  G.  J.  &  S.  643. 


692  EQUITY  JURISPRUDENCE.  [CH.  XXXVI. 

truth,  the  equity  of  the  children  was  not  an  equity  to  which  in  their 
own  right  they  were  entitled.  It  could  not,  therefore,  be  asserted 
against  the  wishes  of  the  wife,  or  in  opposition  to  her  rights.  The 
court,  in  making  a  settlement  of  the  wife's  property,  always  attended 
to  the  interests  of  the  children,  because  it  was  supposed  that,  in  so 
doing  it  was  carrying  into  effect  her  own  desires  to  provide  for  her 
offspring.  But,  if  she  dissented,  the  court  withheld  all  rights  from 
the  children  (o). 

§  1418.  It  was  competent,  however,  for  the  wife  at  any  time 
pending  the  proceedings,  and  before  a  settlement  under  the  decree 
was  completed,  or  at  least  before  proposals  were  made  under  that 
decree,  by  her  consent,  given  in  open  court  or  under  a  commission,  to 
waive  a  settlement,  and  to  agree  that  the  equitable  fund  should  be 
wholly  and  absolutely  paid  over  to  her  husband  (p).  In  such  an  event, 
both  she  and  her  children  would  be  deprived  of  all  right  whatsoever  in 
and  over  the  fund.  But  a  female  ward  of  the  Court  of  Chancery,  who 
had  been  married  without  its  authority,  and  in  contempt  of  it,  would 
not  be  allowed  by  the  court  to  dispense  with  a  settlement  out  of  her 
property.  On  the  contrary,  the  court  could  insist  upon  such  a  settle- 
ment being  made  by  the  husband  notwithstanding  her  consent  to  the 
contrary.  And  the  court  would  often,  by  way  of  punishment,  in  gross 
cases,  do  what  it  was  not  accustomed  to  do  on  common  occasions, 
require  a  settlement  of  the  whole  of  the  wife's  property  to  be  made  on 
her  and  her  children   (g). 

§  1419.  The  equity  of  the  wife  to  a  settlement  might  not  only  be 
waived  by  her,  but  it  might  also  be  lost  or  suspended  by  her  own 
misconduct  (r).  Thus,  if  the  wife  were  living  in  adultery,  apart  from 
her  husband,  a  court  of  equity  would  not  interfere,  upon  her  own 
application,  to  direct  a  settlement  out  of  her  choses  in  action,  or  other 
equitable  interests;  for,  by  such  misconduct,  she  had  rendered  herself 
unworthy  of  the  protection  and  favour  of  the  court  (s).  On  the  other 
hand,  a  court  of  equity  would  not,  in  such  a  case,  upon  the  application 
of  the  husband,  decree  such  equitable  property  of  the  wife  to  be  paid 
over  to  him ;  for  he  was  at  no  charge  for  her  maintenance ;  and  it  was 
only  in  respect  to  his  duty  to  maintain  her,  that  the  law  gave  him 
her  fortune  (t). 

§  1419a.  Where,  indeed,  the  wife  had  entitled  herself  to  a  settle- 
ment, and  it  had  been  decreed  by  a  court  of  equity,  there,  the  court 
would  not  withhold  or  vary  her  right  in  consequence  of  any  misconduct 

(o)  In  re  Walker,  LI.  &  G.  t.  Sugd.  324. 

(p)  Murray  v.  Lord  Elibank,  10  Ves.  84. 

iq)  Like  v.  Beresford,  3  Ves.  606 ;  Stackpole  v.  Beaumont,  3  Ves.  89,  98. 

(r)  Where  the  wife  had  been  guilty  of  fraud  in  inducing  a  person  to  lend  money 
on  the  security  of  the  property,  she  could  not  claim  a  settlement  out  of  it  as  against 
such  creditor.    In  re  Lush's  Trusts,  L.  E.  4  Ch.  591. 

(«)  Carr  v.  Eastabrooke,  4  Ves.  146. 

(t)  Sidney  v.  Sidney,  3  P.  Will.  269. 


§    1418 — 1424.]  MARRIED     WOMEN.  593 

on  her  part,  even  although  the  decree  had  not  been  carried  into 
execution.  Nor  would  the  court  in  such  a  case,  at  the  instance  of 
the  husband  who  had  misconducted  himself,  entertain  a  suit  for  a 
settlement  against  the  wife  or  her  children,  and  thereby  relieve  him 
from  his  ordinary  duty  of  maintaining  them  (u). 

§  1420.  But  we  rriust  be  careful  to  distinguish  between  an  applica- 
tion made  for  a  settlement  on  the  wife,  which  was  addressed  to  the 
equity  of  the  court,  and  which  was  administered  by  it,  sua  sponte, 
upon  the  merits  of  the  parties,  and  was  not  founded  in  any  antecedent 
vested  rights,  and  other  applications,  where  the  parties  stood  upon 
their  own  positive  vested  rights  under  a  settlement,  or  under  a  valid 
contract  for  a  settlement,  made  before  marriage.  In  the  latter  cases, 
courts  of  equity  could  not  refuse  to  protect  or  support  those  vested 
rights  on  account  of  a,ny  misconduct  in  the  wife ;  and  it  would  be  no 
answer  to  a  suit,  brought  by  her  for  a  settlement  in  such  cases,  that 
she  had  been  guilty  of  adultery  (x). 

§  1421.  In  this  and  succeeding  sections  the  learned  author  discussed 
a  jurisdiction,  alleged  to  exist,  exercised  by  the  Court  of  Chancery  to 
decree  a  separate  maintenance  in  the  nature  of  alimony  to  the  wife  by 
the  husband  out  of  his  own  property.  The  only  reported  case  in  which 
this  was  done  occurred  during  the  Commonwealth  (y),  when  the  juris- 
diction of  the  ecclesiastical  courts  had  been  transferred  by  statute  to 
the  Court  of  Chancery.  In  all  the  other  reported  cases  (z)  the  husband 
had  received  property  from  the  wife's  side,  and  where  the  provision 
may  be  regarded  as  in  the  nature  of  an  equity  to  a  settlement,  and  the 
only  doubt  that  can  be  raised  is  whether  the  value  of  the  property 
received  measured  the  extent  of  the  husband's  liability  (a),  although  it 
probably  did  (fc).  In  a  case  before  Lord  Hardwicke  (c)  there  was  the 
additional  circumstance  that  the  wife  had  sued  out  a  supplicavit  in 
Chancery,  and  as  the  husband  had  forfeited  his  recognizance  (d),  it 
may  have  been  a  remedy  in  the  nature  of  a  quantum  damniflcaia.  The 
only  cases  in  which  it  was  ordered  were  where  the  husband  deserted 
his  wife  or  turned  her  out  of  doors  without  sufficient  means  of  support, 
or  compelled  her  by  ill-treatment  or  cruelty  to  take  refuge  with  rela- 
tions or  friends.  It  was  put  an  end  to  by  an  offer  to  resume  cohabi- 
tation and  to  treat  her  bene  et  honeste. 

§  1424.  But,  although  courts  of  equity  did  not  assert  any  general 
jurisdiction  to  decree  a  suitable  maintenance  for  the  wife  out  of  her 

(u)  Hodgens  v.  Hodgens,  11  Bligh  N.  S.  62,  pp.  104  to  110. 
(x)  Seagrave  v.  Seagrave,  13  Ves.  439;  Buchanan  v.  Buchanan,  1  Ball  &  B.  203. 
(y)  Whorewood  v.  Whorewood,  1  Ch.  Gas.  250. 

(z)  Wright  V.  Morley,  11  Ves.  12,  where  the  earlier  cases  are  referred  to;  Duncan 
V.  Duncan,  19  Ves.  394. 

(a)  Lambert  v.  Lambert,  2  Bro.  P.  C.  18. 

(b)  Gilchrist  v.  Cator,  1  De  G-.  &  Sm.  188. 

(c)  Head  v.  Head,  3  Atk.  295,  547. 

(d)  Calmer  v.  Golmer,  Moseley,  113,  118. 

E.J.  38 


594  EQUITY  JURISPRUDENCE.  [CH.  XXXVI. 

husband's  property,  because  he  had  deserted  her  or  ill-treated  her, 
yet,  on  the  other  hand,  they  did  not  abstain  altogether  from  inter- 
ference in  her  favour.  Whenever  the  wife  had  any  equitable  property, 
within  the  reach  of  the  jurisdiction  of  courts  of  equity,  they  would 
lay  hold  of  it;  and,  in  the  case  of  the  desertion  or  ill-treatment  of  the 
wife  by  the  husband,  as  well  as  in  the  case  of  his  inability  or  refusal 
to  maintain  her,  they  would  decree  her  a  suitable  maintenance  out  of 
such  equitable  funds  (e).  The  general  ground  on  which  this  jurisdiction 
was  asserted  was,  that  the  law,  when  it  gave  the  property  of  the  wife 
to  the  husband,  imposed  upon  him  the  corresponding  obligation  of 
maintaining  her;  and  that  obligation  would  fasten  itself  upon  such 
equitable  property,  in  the  nature  of  a  lien  or  trust,  which  courts  of 
equity,  when  necessary,  would,  in  pursuance  of  their  duty,  enforce. 
If  the  equitable  property  had  been  fraudulently  transferred  into  the 
possession  of  the  husband,  or  of  a  third  person  for  his  use,  the  same 
equity  would  be  enforced  against  it  in  their  hands ;  and  if  it  had 
passed  into  the  possession  of  a  bond  fide  purchaser  without  notice,  the 
other  property  of  the  husband  would  be  held  liable  as  a  substitute  (/). 

§  1425.  Courts  of  equity  would  also,  for  the  like  reasons,  inter- 
fere, and  decree  maintenance  to  the  wife,  under  the  like  circumstances, 
whenever  there  was  a  positive  agreement  between  the  parties  for  the 
purpose,  by  way  of  specific  performance  (g).  But  no  action  could 
be  maintained  in  equity  to  enforce  any  decree  for  ahmony  in  a 
matrimonial  cause  because  it  may  be  recalled  or  the  amount  payable 
varied  (h). 

§  1426.  This  equity  of  a  wife  to  a  maintenance,  out  of  her  own 
equitable  estate,  was  generally  confined  to  cases  of  the  nature  above 
mentioned,  that  is  to  say,  where  the  husband  abandoned  or  deserted 
her;  or  where  he  refused  to  maintain  her;  or  where,  by  reason  of 
his  insolvency,  he  was  incapable  of  affording  a  suitable  maintenance 
for  her.  Unless  some  one  of  these  ingredients  existed,  courts  of  equity 
would  decline  to  interfere.  If,  therefore,  the  separation  of  the  wife 
from  her  husband  were  voluntary  on  her  part,  and  was  caused  by  no 
cruelty  or  iU-treatment ;  or  if  he  were  bond  fide  ready  and  willing 
and  able  to  maintain  her,  and  she,  without  good  cause,  chose  to 
remain  separate  from  him ;  or  if  she  already  had  a  competent 
maintenance;  in  all  such  cases,  courts  of  equity  would  afford  her  no 
aid  whatever  in  accomplishing  a  purpose,  which  was  deemed  subver- 
sive of  the  true  policy  of  the  matrimonial  law,  and  destructive  of  the 
best  interests  of  society  (t).     A  fortiori,  where  the  wife  had  eloped, 

(e)  Wright  v.  Morley,  11  Ves.  12;  Taunton  v.  Morris,  11  Ch.  D.  779;  Boxall  v 
Boxall,  27  Ch.  D.  220. 

(/)  Colmer  v.  Calmer,  Mos.  113;  Watkyns  v.  Watkyns,  2  Atk.  96. 

(g)  Angier  v.  Angier,  Prec.  Ch.  496;  Head  v.  Head,  3  Atk.  295,  647. 

(h)  Stones  v.  Cooke,  8  Sim.  321.    See  In  re  Robinson,  27  Ch.  D.  160. 

(t)  Watkyns  v.  Watkyns,  2  Atk.  96;  Ball  v.  Montgomery,  2  Yea.  Jun.  191,  198, 


§    1425 — 1429.]  MARRIED     WOMEN.  595 

and  was  living  in  a  state  of  adultery,  they  would  withhold  all  counte- 
nance to  such  grossly  immoral  conduct;  and  they  would  leave  the 
wife  to  bear,  as  she  might,  the  ordinary  results  of  her  own  infamous 
abandonment  of  duty  (fc). 

§  1427.  It  was  formerly  considered  that  courts  of  equity  would, 
under  no  circumstances  whatever,  enforce  specific  performance  of 
deeds  of  separation  between  husband  and  wife,  on  the  ground  that 
such  separation  between  married  persons  is  against  public  policy. 
"  But  a  change  came  over  judicial  opinion  as  to  public  policy,  other 
considerations  arose,  and  people  began  to  think  that  after  all  it 
might  be  better  and  more  beneficial  for  married  people  to  avoid  in 
many  cases  the  expense  and  the  scandal  of  suits  of  divorce,  by 
settling  their  differences  quietly  by  the  aid  of  friends  out  of  court, 
although  the  consequence  might  be  that  they  would  live  separately, 
and  that  was  the  view  carried  out  by  the  courts  when  it  became 
once  decided  that  separation  deeds  iper  se  were  not  against  public 
policy  "  (I).  A  specific  performance  of  such  a  deed  can  be  enforced  by 
the  husband  against  the  wife,  and  at  the  instance  of  the  wife  against 
the  husband;  and  if  either  party  threatens  to  sue  for  restitution 
of  conjugal  rights,  the  courts  of  equity  have  power  to  issue  an 
injunction  against  the  party  so  threatening  to  sue  (m). 

§  1428.  A  deed  of  separation  does  not  alter  the  legal  condition 
of  the  wife.  A  court  of  equity  has  power  to  enforce  specific 
performance  of  an  agreement  for  such  a  deed,  and  for  the  compromise 
of  a  suit  in  the  Divorce  Court  without  infringing  the  provisions 
of  the  Judicature  Act  which  prohibit  interference  with  proceedings 
pending  in  another  branch  of  the  court  (n). 

§  1429.  Such  are  some  of  the  more  important  instances  of  the 
exercise  of  jurisdiction  by  courts  of  equity  in  regard  to  married 
women,  for  their  protection,  support,  and  relief,  in  some  of  which 
they  were  merely  auxiliary  to  the  common  law ;  and  in  others,  again, 
they  proceeded  upon  principles  wholly  independent,  if  not  in  contra- 
vention, of  that  system.  Upon  a  just  survey  of  the  doctrines  of 
courts  of  equity  upon  this  subject,  it  is  difficult  to  resist  the  impres- 
sion that  their  interposition  was  founded  in  wisdom,  in  sound  morals, 
and  in  a  delicate  adaptation  to  the  exigencies  of  a  polished  and 
advancing  state  of  society.     And  here,   as  well  as  in  the  exercise  of 

199;  Garr  v.  Eastabrooke,  4  Ves.  196;  Giacommetti  v.  Prodgers,  L.  E.  8  Ch.  3^; 
Duncan  v.  Duncan,  19  Ves.  394. 

(k)  Wilkes  v.  Wilkes,  2  Dick.  791;  Worrall  v.  Jacob,  3  Meriv.  267;  Westmeath 
V.  Westmeath,  Jac.  126;  s.c.  1  Dow  N.  S.  619;  St.  John  v.  St.  John,  11  Ves.  529; 
Frampton  v.  Frampton,  4  Beav.  287,  293;  Duncan  v.  Campbell,  12  Sim.  616. 

(I)  Per  Sir  G.  Jessel,  M.E.,  in  Besant  v.  Wood,  12  Ch.  D.  605,  see  p.  620. 

(m)  Besant  v.  Wood,  12  Ch.  D.  605.  The  change  in  judicial  opinion  noted  in  the 
text  dates  from  Wilson  v.  Wilson,  1  H.  L.  C.  538.  This  section,  owing  to  the  change 
in  the  law,  is  altogether  different  from  that  in  the  former  editions  of  the  learned  author. 

(n)  Hart  v.  HaH,  18  Ch.  D.  670. 


-596  EQUITY    JURISPRUDENCE.  [CH.    XXXVI. 

the  jurisdiction  in  regard  to  infants  and  lunatics,  we  cannot  fail 
to  observe  the  parental  solicitude  with  which  courts  of  equity  ad- 
ministered to  the  wants,  and  guarded  the  interests,  and  succoured  the 
weakness,  of  those  who  were  left  without  any  other  protectors,  in  a 
manner  which  the  common  law  was  too  rigid  to  consider,  too  indifierent 
to  provide  for. 

§  1429a..  The  learning  as  to  the  property  of  married  women,  which 
formerly  constituted  an  important  part  of  the  doctrines  of  courts 
of  equity,  has  lost  all  its  importance  by  the  passing  of  the  Married 
Women's  Property  Act,  1882  (45  &  46  Vict.  c.  75),  which  consolidated 
and  amended  earlier  enactments  of  1870  and  1874,  and  which  has 
itself  been  amended  by  the  Married  Women's  Property  Act,  1893 
(56  &  57  Vict.  c.  63),  and  the  Married  Women's  Property  Act,  1907 
(7  Edw.  7,  c.  18).  By  the  efiect  of  section  1,  sub-s.  (1)  of  the  Act 
of  1882,  all  property  of  a  married  woman,  however  acquired,  becomes 
her  separate  property  (o),  without  the  intervention  of  any  trustee. 
And  by  sub-section  (2)  she  has  become  capable  of  entering  into  and 
rendering  herself  liable  in  respect  of  and  to  the  extent  of  her  separate 
property  on  any  contract  and  of  suing  or  being  sued  in  contract  or  in 
tort  in  all  respects  as  if  she  were  a  feme  sole,  and  her  husband  need 
not  be  joined  with  her  either  as  plaintiff  or  defendant,  or  be  made  a 
party  to  any  action  or  other  legal  proceeding  brought  by  or  taken 
against  her;  and  any  damages  or  costs  recovered  by  her  in  any  such 
action  or  proceeding  shall  be  her  separate  property;  and  any  damages 
or  costs  recovered  against  her  in  any  such  action  or  proceeding  shall 
be  payable  out  of  her  separate  property,  and  not  otherwise.  By 
section  2  of  the  Act  of  1893,  she  may,  if  a  plaintifi  (p),  be  ordered 
to  pay  the  costs  of  any  action  or  other  proceeding  out  of  property 
which  is  subject  to  a  restraint  upon  anticipation,  and  the  order 
enforced  by  the  appointment  of  a  receiver  or  the  sale  of  the  property. 
And  by  section  1  of  the  Act  of  1893,  every  contract  entered  into  after 
December  5,  1893,  by  a  married  woman,  otherwise  than  as  agent, 
(a)  shall  be  deemed  to  be  a  contract  entered  into  by  her  with  respect 
to  and  to  bind  her  separate  property  whether  she  is  or  is  not  in  fact 
possessed  of  or  entitled  to  any  separate  property  at  the  time  when  she 
enters  into  such  contract;  (b)  shall  bind  all  separate  property  which 
she  may  at  that  time  or  thereafter  be  possessed  of  or  entitled  to; 
and  (c)  shall  also  be  enforceable  by  process  of  law  against  all  property 
which  she  may  thereafter  while  discovert  be  possessed  of  or  entitled; 
with  an  exception  from  liability  of  any  property  which  at  that  time 
or  thereafter  she  is  restrained  from  anticipating.  Every  married 
woman  carrying  on  a   trade   separately   from   her  husband   shall,    in 

(o)  Ex  ■parte  Hood  Bans,  [1896]  2  Ch.  690. 

(p)  Hood  Barrs  v.  Gathcart,  [1895]  1  Q.  B.  873;  Moran  v.  Rttce,  [1896]  P.  214; 
Hood  Barrs  v.  Heriot,  [1897]  A.  C.  177. 


§    1429a.]  MARRIED     WOMEN.  597 

respect  of  her  separate  property,  be  subject  to  the  bankruptcy  laws 
in  the  same  way  as  if  she  were  a  feme  sole.  By  section  2  of  the 
Act  of  1882,  every  woman  who  maxries  after  1882,  is  entitled  to  have 
and  to  hold  as  her  separate  property  and  to  dispose  of  in  manner 
aforesaid  all  real  and  personal  property  which  shall  belong  to  her  at 
the  time  of  marriage,  or  shall  be  acquired  by  or  devolve  upon  her 
after  marriage,  including  any  wages,  earnings,  money,  and  property 
gained  or  acquired  by  her  in  any  employment,  trade,  or"  occupation, 
in  which  she  is  engaged  or  which  she  carries  on  separately  from  her 
husband,  or  by  the  exercise  of  any  literary,  artistic,  or  scientific 
skill.  By  section  3  of  the  same  statute,  a  wife  who  lends  money  to 
her  husband  for  the  purpose  of  any  trade  on  business  carried  on  by 
him  or  otherwise,  is  postponed  to  the  general  trade  creditors  in  the 
event  of  bankruptcy  (g).  By  section  4  of  the  same  statute,  the 
execution  of  a  general  power  by  wiU  by  a  married  woman  shall 
have  the  efiect  of  making  the  property  appointed  liable  for  her  debts 
and  other  liabilities  in  the  same  manner  as  her  separate  estate  is  made 
liable  under  this  Act.  And  by  section  5  of  the  same  statute,  every- 
woman  married  before  the  commencement  of  this  Act  shall  be  entitled 
to  have  and  to  hold  and  to  dispose  of  in  manner  aforesaid  as  her 
separate  property  all  real  and  personal  property,  her  title  to  which, 
whether  vested  or  contingent,  and  whether  in  possession,  reversion, 
or  remainder,  shall  accrue  after  the  commencement  of  this  Act, 
including  any  wages,  earnings,  money,  and  property  so  gained  or 
acquired  by  her  as  aforesaid  (r).  Sections  6,  7,  8  govern  investments 
made  by  married  women  in  the  public  stocks  or  funds,  or  in  the  shares 
of  private  companies.  By  section  10  of  the  Act  of  1882,  if  such  invest- 
ments shall  have  been  made  by  a  married  woman  by  means  of  moneys 
of  her  husband  without  his  consent,  the  dividends  may  be  ordered  to  be 
paid  to  the  husband.  The  same  section  sets  aside  any  investment 
made  by  the  husband  or  wife  for  fraudulent  purposes.  By  section  11 
of  the  same  statute,  a  married  woman  may  effect  a  policy  on  her  own 
life,  or  on  the  life  of  her  husband,  for  her  separate  use ;  and  a  woman 
may  take  out  a  policy  of  life  assurance  expressed  to  be  for  the  benefit 
of  her  husband,  or  her  children,  or  both,  and  in  like  manner  her 
husband  may  take  out  a  policy  of  assurance  expressed  to  be  for  the 
benefit  of  his  wife,  or  of  his  children,  or  both,  and  thereby,  whether 
trustees  be  appointed  or  not,  a  trust  shall  be  created  in  favour  of  the 
objects  therein  named,  and  the  moneys  payable  under  such  policies 
shall  not  form  part  of  the  estate  of  the  insured;  but  if  it  be  shown 
that  the  policy  was  taken  out  to  defraud  the  creditors,  the  latter  shall 

(q)  But  this  does  not  apply  to  the  case  of  a  married  woman  lending  money  to  a 
firm  of  which  her  husband  is  one  of  several  partners.  In  re  Tuff,  Ex  parte  NottitKj- 
ham,  19  Q.  B.  D.  88. 

(r)  Reid  v.  Reid,  31  Ch.  D'.  402;  Smart  v.  Tranter,  43  Ch.  D.  587;  Stockley  v. 
Parsons,  45  Ch.  D.  51. 


598  EQUITY    JURISPRUDEKCE.  [CH.    XXXVI. 

be  entitled  to  recover  a  sum  equal  to  the  premiums  paid.  By  section 
12  of  the  Act  of  1882,  every  woman,  whether  married  before  or  after 
this  Act,  shall  have  in  her  own  name  against  all  persons  whomsoever, 
including  her  husband,  the  same  civil  remedies,  for  the  protection 
and  security  of  her  own  separate  property,  as  if  such  property  belonged 
to  her  as  a  feme  sole,  but,  except  as  aforesaid  («),  no  husband  or  wife 
shall  be  entitled  to  sue  the  other  for  a  tort.  And  by  section  13,  a 
woman  after  her  marriage  shall  continue  to  be  liable  in  respect  and  to 
the  extenti  of  her  separate  property  for  all  debts  contracted,  and  all 
contracts  entered  into  or  wrongs  committed  by  her  before  her  marriage, 
including  any  sums  for  which  she  may  be  liable  as  a  contributory, 
either  before  or  after  she  has  been  placed  on  the  hst  of  contributories, 
under  and  by  virtue  of  the  Acts  relating  to  joint-stock  companies; 
and  she  may  be  sued  for  any  such  debt  and  for  any  liability  in 
damages  or  otherwise  under  any  such  contract,  or  in  respect  of  any 
such  wrong ;  and  all  sums  recovered  against  her  in  respect  thereof, 
or  for  any  costs  relating  thereto,  shall  be  payable  out  of  her  separate 
property;  and,  as  between  her  and  her  husband,  unless  there  be  any 
contract  between  them  to  the  contrary,  her  separate  property  shall 
be  deemed  to  be  primarily  liable  for  all  such  debts,  contracts,  or 
wrongs,  and  for  all  damages  or  costs  recovered  in  respect  thereof: 
provided  always,  that  nothing  in  this  Act  shall  operate  to  increase 
or  diminish  the  liability  of  any  woman  married  before  the  commence- 
ment of  this  Act  for  any  such  debt,  contract,  or  wrong,  as  aforesaid, 
except  as  to  any  separate  property  to  which  she  may  become  entitled 
by  virtue  of  this  Act,  and  to  which  she  would  not  have  been  entitled 
for  her  separate  use  under  the  Acts  hereby  repealed  or  otherwise  if 
this  Act  had  not  passed.  Section  14  of  the  same  statute  limits  the 
liability  of  the  husband  for  the  debts  of  his  wife  contracted,  and  for  all 
contracts  entered  into  and  wrongs  committed  by  her,  before  marriage, 
including  any  liabilities  to  which  she  may  be  so  subject  under  the 
Acts  relating  to  joint-stoclf  companies  as  aforesaid,  to  the  extent  of 
all  property  whatsoever  belonging  to  his  wife  which  he  shall  have 
acquired  or  become  entitled  to  from  or  through  his  wife,  after 
deducting  therefrom  any  payments  made  by  him,  and  any  sums  for 
which  judgment  may  have  been  bond,  fide  recovered  against  him  in 
any  proceeding  at  law,  in  respect  of  any  such  debts,  contracts,  or 
wrongs  for  or  in  respect  of  which  his  wife  was  liable  before  her 
marriage  as  aforesaid.    By  section  17,  questions  between  husband  and 

(s)  Notwithstanding  this  section,  a  husband  is  not  entitled  to  maintain  an  action 
against  his  wife  for  money  lent  to  her,  or  money  paid  for  her  at  her  request,  where  the 
money  is  lent  or  paid  before  the  marriage,  although  he  is  entitled  to  maintain  an 
action  against  his  wife  and  to  charge  her  separate  property,  for  money  lent  by  him  to 
her  after  their  marriage,  and  for  money  paid  by  him  for  her  after  their  marriage  at  her 
request  made  before  or  after  their  marriage,  by  force  of  sect.  1,  sub-s.  2.  Butler  v. 
Butler,  U  Q.  B.  D.  881, 


§    1429a.]  MARRIED     WOMEN.  599 

wife  as  to  property,  may  be  decided  in  a  summary  way.  By  section 
18,  a  married  woman  who  is  an  executrix  or  administratrix  alone  or 
jointly  with  any  other  person  or  persons  of  the  estate  of  any  deceased 
person,  or  a  trustee  alone  or  jointly  as  aforesaid  of  property  subject 
to  any  trust,  may  sue  or  be  sued,  and  may  transfer  or  join  in  trans- 
ferring any  such  annuity  or  deposit  as  aforesaid,  or  any  sum  forming 
part  of  the  public  stocks  or  funds,  or  of  any  other  stocks  or  funds 
transferable  as  aforesaid,  or  any  share,  stock,  debenture,  debenture 
stock,  or  other  benefit,  right,  claim,  or  other  interest  of  or  in  any 
such  corporation,  company,  public  body,  or  society  in  that  character, 
without  her  husband,  as  if  she  were  a  feme  sole.  By  section  19, 
nothing  in  this  Act  contained  shall  interfere  with  or  affect  any  settle- 
ment or  agreement  for  a  settlement  made  or  to  be  made,  whether 
before  or  aiter  marriage,  respecting  the  property  of  any  married 
woman,  or  shall  interfere  with  or  render  inoperative  any  restriction 
against  anticipation  at  present  attached  or  to  be  hereafter  attached 
to  the  enjoyment  of  any  property  or  income  by  a  woman  under  any 
settlement  (t),  agreement  for  a  settlement,  will,  or  other  instrument; 
but  no  restriction  against  anticipation  contained  in  any  settlement 
or  agreement  for  a  settlement  of  a  woman's  own  property  to  be  made 
or  entered  into  by  herself  shall  have  any  validity  against  debts 
contracted  by  her  before  marriage,  and  no  settlement  or  agreement 
for  a  settlement  shall  have  any  greater  force  or  validity  against  creditors 
of  such  woman  than  a  like  settlement  or  agreement  for  a  settlement 
made  or  entered  into  by  a  man  would  have  against  his  creditors. 
This  section  renders  necessary  the  consideration  of  a  point  not  adverted 
to  by  the  author.  The  Court  of  Chancery  having  invented  the  separate 
use,  permitted  a  condition  to  be  attached,  that  it  should  be  inalienable 
during  the  existence  of  the  separate  use,  but  apart  from  that  equitable 
interest  a  restriction  against  alienation  is  as  inoperative  in  a  court  of 
equity  as  it  is  in  a  court  of  law  (■u).  But  it|  is  now  unnecessary  to 
limit  the  estate  formally  to  the  separate  use  of  a  married  woman, 
in  order  to  attach  an  effective  restraint  upon  aUenation  (x).  The 
older  term  was  a  restraint  upon  anticipation  because  its  inventor 
(Lord  Thurlow)  first  attached  it  to  a  life  interest,  and  it  is  still  usually 
so  described,  but  it  may  be  attached  as  well  to  an  absolute  interest 
as  to  a  life  interest,  and  to  real  or  personal  estate  {y).  It  was  held  that 
this  fetter  was  irremovable  during  a  coverture,  even  where  the 
interests  of  a  married  woman  would  be  advanced  by  so  doing   {z). 

(t)  Pelton  Brothers  v.  Harrison,  [1891]  2  Q.  B.  422;  Hood  Burrs  v.  Heriot, 
[1896]  A.  C.  174. 

(u)  Tullett  V.  Armstrong,  1  Beav.  1;  s.c.  4  Myl.  &  Cr.  377;  Stogdon  v.  Lee, 
[1891]  1  Q.  B.  661. 

(a;)  Ex  parte  Hood  Barrs,  [1896]  2  Ch.  690. 

{y)  Baggett  v.  Meux,  1  Coll.  138 ;  s.c.  1  Ph.  627. 

(2)  Robinson  v.  Wheelwright,  6  De  G.  M.  &  G.  635. 


•600  EQUITY    JUEISPRDDENCE.  [CH.    XXXVI. 

To  remedy  this  state  of  affairs,  the  court  was  empowered  by  the. 
Conveyancing  Act,  1881,  section  39,  to  remove  the  restraint.  The 
section  has  been  repealed  by  section  7  of  the  Conveyancing  Act,  1911, 
and  the  following  enlarged  provisions  substituted :  ' '  Where  a  married 
woman  is  restrained  from  anticipation  or  from  alienation  in  respect 
■of  any  property  or  any  interest  in  property  belonging  to  her,  or  is  by 
law  unable  to  dispose  of  or  to  bind  such  property,  or  her  interest 
therein,  including  a  reversionary  interest  arising  under  her  marriage 
settlement,  the  court  may,  if  it  thinks  fit,  where  it  appears  to  the 
court  to  be  for  her  benefit,  by  judgment  or  order,  with  her  consent, 
bind  her  interest  in  such  property."  It  is  to  be  feared  that  too  little 
attention,  has  been  paid  in  some  instances  to  the  qualification  that  it 
should  be  ' '  for  her  benefit, ' '  words  which  also  occurred  in  the  repealed 
section  of  the  Act  of  1881.  The  fact  that  the  trustees,  if  any,  are 
not  necessary  parties  to  the  application  (a)  may  account  for  this. 
As  already  stated,  property  of  a  married  woman  which  is  subject  to 
a  restraint  upon  anticipation  rnay  be  made  available  for  the  costs  of 
proceedings  instituted  by  her.  Here  her  benefit  is  obviously  out  of 
consideration.  The  construction,  which  seems  to  have  been  inevitable, 
placed  upon  section  19  of  the  Married  Women's  Property  Act,  1882, 
enabled  the  husband  to  render  nugatory  the  provisions  of  the 
statutes  (b),  but  by  section  2  of  the  Act  of  1907,  her  concurrence 
is  required  to  an  alienation  of  her  property  by  the  husband.  If  she 
dies  an  infant,  her  property  is  bound  in  the  hands  of  the  husband, 
who  would  by  reason  of  her  death  become  entitled  to  her  personalty  (c), 
by  his  covenant  or  disposition.  The  property  of  a  married  woman  may 
be  made  available  to  satisfy  her  liabilities  in  the  hands  of  her 
personal  representative  by  section  23  of  the  Act  of  1882.  A  married 
woman  could  always  be  appointed  a  trustee  or  executor  by  act  of 
the  parties,  although  the  Court  of  Chancery  would  not  appoint  her  a 
trustee  as  a  matter  of  policy  (d),  and  section  24  of  the  Act  of  1882 
makes  her  separate  property  available  for  her  breach  of  trust  or 
devastavit  and  frees  her  husband  from  liability,  which  he  would  have 
been  under  before  the  statute,  "  unless  he  has  acted  or  intermeddled 
in  the  trust  or  administration." 

(a)  In  re  Little,  36  Ch.  D.  701. 

(b)  Hancock  v.  Hancock,  38  Ch.  D.  78;  Stevens  v.  Trevor-Garrick,  [1893]  2  Ch. 
307. 

(c)  SmaH  v.  Tranter,  43  Ch.  D.  687.    See  Att.-Gen.  v.  Partington,  L   E  4  H.  L 
100. 

(d)  Lake  v.  De  Lambert,  4  Ves.  595. 


§  1430—1432.]  SET-OFF,  601 


CHAPTER   XXXVII. 

SET-OFF. 

§  1430.  It  remains  for  us  to  take  notice  of  a  few  other  matters, 
over  which  courts  of  equity  exercised  a  jurisdiction,  either  in  its 
own  nature  exclusive,  or,  at  least,  exclusive  for  particular  objects,  and 
under  particular  circumstances.  Upon  these,  however,  our  com- 
mentaries will  necessarily  be  brief,  as  they  either  are  not  of  very 
frequent  occurrence,  or  they  are,  in  a  great  measure,  embraced  under 
the  heads  which  have  been  already  discussed.' 

§  1431.  And,  in  the  first  place,  let  us  consider  the  subject  of 
Set-off,  as  an  original  source  of  equity  jurisdiction  (a).  It  is  not 
easy  to  ascertain  the  true  nature  and  extent  of  this  jurisdiction, 
since  it  was  materially  afEected  in  its  practical  application  by  the 
statutes  of  2  Geo.  2,  c.  22,  and  8  Geo.  2,  c.  24,  in  regard  to  set-oS 
at  law,  in  cases  of  mutual  unconnected  debts  (b) ;  and  by  the  more 
enlarged  operation  of  the  banlcrupt  laws,  in  regard  to  set-off,  both  at 
law  and  in  equity,  in  cases  of  mutual  debts  and  mutual  credits  (c). 

§  1432.  It  was  said,  by  a  learned  chancellor,  that  before  the 
statute  or  set-off  at  law,  and  the  statutes  of  mutual  debts  and  credits 
in  bankruptcy,  "  this  court  (that  is,  the  Court  of  Chancery  as  a  court 
of  equity)  was  in  possession  of  it  {i.e.,  the  doctrine  of  set-off),  as 
grounded  upon  principles  of  equity,  long  before  the  law  interfered. 
It  is  true,  where  the  court  does  not  find  a  natural  equity,  going 
beyond  the  statute  (of  set-off),  the  construction  is  the  same  in  equity 
as  at  law.  But  that  does  not  affect  the  general  doctrine  upon  natural 
lequity.  So,  as  to  mutual  debts  and  credits,  courts  of  equity  must 
make  the  same  construction  as  the  law.  But,  both  in  law  and.  in 
equity,  that  statute,  enabling  a  party  to  prove  the  balance  of  the 
account,  upon  mutual  credit,  has  gone  much  farther  than  the  party 
could  have  gone  before,  either  in  law  or  in  equity,  as  to  set-off  "  (d). 
This  is  not  a  very  instructive  account  of  the  doctrine ;  for  it  leaves  in 

(o)  Set-off  was  formerly  called  Stoppage.  See  Downham  v.  Matthews,  Prec. 
Ch.  582 ;  Jeffs  v.  Wood,  2  P.  Will.  128,  129. 

(b)  See  Bac.  Abr.  title  Set-off,  A.  B,  C.  These  statutes  have  been  repealed  and 
an  enlarged  jurisdiction  conferred  upon  the  court  as  hereafter  noticed.  §  1444a,  post. 

(c)  See  stat.  4  &  5  Anne,  c.  17 ;  5  Geo.  1,  c.  2 ;  5  Geo.  2,  o.  30;  46  Geo.  3,  c.  135 ; 
6  Geo.  4,  c.  16. 

(d)  Lord  Bldon  in  Ex  parte  Stephens,  11  Ves.  27;  Ex  parte  Blagden,  19  Ves.  467. 


602  EQUITY     JURISPRUDENCE.  [CH.    XXXVII. 

utter  obscurity  what  were  the  particular  cases  in  which  courts  of 
equity  did  interpose  upon  principles  of  natural  equity  (e).  In  later 
times  a  very  eminent  judge,  Sir  G.  Turner,  when  vice-chancellor, 
asserted  that  courts  of  equity  had  borrowed  the  rule  from  the  Eoman 
law  (/).  Sir  G.  Jessel,  M.R.,  accepted  this  opinion  without 
comment  {g).  Lord  Cranworth,  L.C.,  apparently  entertained  the 
same  view  (h). 

§  1433.  Lord  Mansfield  has  expressed  his  views  of  the  subject  of 
set-off  in  equity  in  the  following  language:  "Natural  equity  says, 
that  cross-demands  should  compensate  each  other,  by  deducting  the 
less  sum  from  the  greater;  and  that  the  difference  is  the  only  sum 
which  can  be  justly  due.  But  positive  law,  for  the  sake  of  the  forms 
of  proceeding  and  convenience  of  trial,  has  said,  that  each  must  sue 
and  recover  separately,  in  separate  actions.  It  may  give  light  to  this 
case,  and  the  authorities  cited,  if  1  trace  the  law  relative  to  the 
doing  complete  justice  in  the  same  suit,  or  turning  the  defendant 
round  to  another  suit,  which,  under  various  circumstances,  may  be 
of  no  avail.  Where  the  nature  of  the  employment,  transaction,  or 
dealings,  necessarily  constitutes  an  account,  consisting  of  receipts 
and  payments,  debts  and  credits,  it  is  certain,  that  only  the  balance 
can  be  the  debt;  and  by  the  proper  forms  of  proceeding  in  courts 
of  law  or  equity,  the  balance  only  can  be  recovered.  After  a  judgment, 
or  decree  'to  account,'  both  parties  are  equally  actors.  Where  there 
were  mutual  debts  unconnected,  the  law  said,  they  should  not  be  set 
off;  but  each  must  sue.  And  courts  of  equity  followed  the  same  rule, 
because  it  was  the  law;  for,  had  they  done  otherwise,  they  would 
have  stopped  the  course  of  law  in  all  cases  where  there  was  a  mutual 
demand.  The  natural  sense  of  mankind  M^as  first  shocked  at  this  in 
the  case  of  bankrupts;  and  it  was  provided  for  by  4  Anne,  c.  17,  s.  1, 
and  5  Geo.  2,  c.  80,  s.  28.  This  clause  must  have,  everywhere,  the 
same  construction  and  effect;  whether  the  question  arises  upon  a 
summary  petition,  or  a  formal  bill,  or  an  action  at  law.  There  can 
be  but  one  right  construction;  and,  therefore,  if  courts  differ,  one 
must  be  wrong.  Where  there  was  no  bankruptcy,  the  injustice  of  not 
setting  off  (especially  after  the  death  of  either  party)  was  so  glaring, 
that  Parliament  interposed  by  2  Geo.  2,  c.  22,  and  8  Geo.  2,  c.  24,  s.  5. 
But  the  provision  does  not  go  to  goods,  or  other  specific  things  wrong- 
fully detained.  And,  therefore,  neither  courts  of  law  nor  equity  can 
make  the  plaintiff,  who  sues  for  such  goods,  pay  first  what  is  due  to 


(e)  The  general  principles  of  the  English  law,  as  to  set-off,  are  well  summed  np 
in  Mr.  Evans's  edition  o{  Pothier  on  Obligations,  vol.  2,  p.  112,  No.  13. 

(/)  Freeman  v.  Lomas,  9  Hare,  109,  113. 

(g)  Middleton  v.  Pollock,  Ex  parte  Nugee,  L.  R.  20  Eq.  29,  34.  See  also  per 
eundem  In  re  Whitehouse  d  Co.,  9  Oh.  D.  595,  697. 

(h)  Wallis  v.  Bastard,  i  De  G.  M.  &  G.  251,  266. 


§  1433—1435.]  SET-OFF.  603 

the  defendant;  except  so  far  as  the  goods  can  be  construed  a  pledge; 
and  then  the  right  of  the  plaintiff  is  only  to  redeem  "  (i). 

§  1434.  If  this  be  a  true  account  of  the  matter,  then  it  would 
seem  that  courts  of  equity  did  not,  antecedently  to  the  statutes  of 
set-off,  exercise  any  jurisdiction  as  to  set-off,  unless  some  peculiar 
equity  intervened,  independently  of  the  mere  fact  of  mutual,  uncon- 
nected accounts.  As  to  connected  accounts  of  debt  and  credit,  it 
is  certain,  that  both  at  law  and  in  equity,  and  without  any  reference 
to  the  statutes,  or  the  tribunal  in  which  the  cause  was  depending, 
the  same  general  principle  prevailed,  that  the  balance  of  the  accounts 
only  was  recoverable;  which  was,  therefore,  a  virtual  adjustment  and 
set-off  between  the  parties  (k).  But  there  is  some  reason  to  doubt, 
whether  Lord  Mansfield's  statement  of  the  jurisdiction  of  equity  in 
cases  of  set-off  is  to  be  understood  in  its  general  latitude,  and  without 
some  qualifications.  It  is  true  that  equity  generally  followed  the  law, 
as  to  set-off;  but  it  was  with  limitations  and  restrictions.  If  there 
were  no  connection  between  the  demands,  then  the  rule  was,  as  it  was 
at  law.  But,  if  there  were  a  connection  between  the  demands,  equity 
acted  upon  it,  and  allowed  a  set-off  under  particular  circumstances  (I). 

§  1485.  In  the  first  place,  it  would  seem,  that,  independently  of 
the  statutes  of  set-off,  courts  of  equity,  in  virtue  of  their  general 
jurisdiction,  were  accustomed  to  grant  relief  in  all  cases,  where, ' 
although  there  were  mutual  and  independent  debts,  yet  there  was  a 
mutual  credit  between  the  parties,  founded,  at  the  time,  upon  the 
existence  of  some  debts  due  by  the  crediting  party  to  the  other. 
By  mutual  credit,  in  the  sense  in  which  the  terms  are  here  used, 
we  are  to  understand,  a  knowledge  on  both  sides  of  an  existing 
debt  due  to  one  party,  and  a  credit  by  the  other  party,  founded  on, 
or  trusting  to  such  debt,  as  a  m«ans  of  discharging  it  (m).  Thus, 
for  example,  if  A.  should  be  indebted  to  B.  in  the  sum  of  £2,000  by 
specialty,  and  B.  indebted  to  A.  in  the  sura  of  £2,430,  the  debts  being 
payable  at  different  times,  but  both  presently  payable  at  the  time 
of  action  brought  (ii),  and  of  the  adjudication  (o),  a  court  of  law 
could  not  set  off  these  independent  debts  against  each  other;  but  a 
court  of  equity  would  not  hesitate  to  do  so,  upon  the  ground  either 
of  the  presumed  intention  of  the  parties,  or  of  what  is  called  a  natural 
equity  (p).  If,  in  such  a  case,  there  should  have  been  an  agreement 
(express  or  implied)  to  set  off  the  debts  sigainst  each  other,  pro  tanto, 

(8)  Green  v.  Farmer,  i  Burr.  2220,  2221. 

(fc)  Dale  V.  Sollet,  i  Burr.  2133. 

(Z)  Whitaker  v.  Rush,  Ambler,  407,  408,  and  Mr.  Blunt's  note  (4) ;  Rawson  v. 
Samuel,  Cr.  &  Phil.  161;  Clark  v.  Cort,  Cr.  &  Phil.  154;  Middleton  v.  Pollock,  Ex 
parte  Knight  and  Raymond,  L.  E.  20  Bq.  515. 

(m)  Ex  parte  Stevens,  11  Ves.  24;  Vulliamy  v.  Noble,  3  Mer.  593. 

(n)  Young  v.  Bank  of  Bengal,  1  Moo.  P.  C.  ISO;  Richards  v.  Jones,  2  Ex.  471. 

(o)  Eyton  v.  Littledale,  4  Ex.  159. 

(p)   Wallis  V.  Bastard,  4  De  G.  M.  &  G.  251;  Freeman  v.  Lomas,  9  Hare,  109. 


604  EQUITY     JUEISPEUDENCB.  [CH.    XXXVII. 

there  could  be  no  doubt  that  a  court  of  equity  would  have  enforced  a 
specific  performance  of  the  agreement,  although  at  the  common  law, 
the  party  might  have  been  remediless.  Conversely  a  right  of  set- 
off may  be  displaced  by  the  agreement  of  the  parties  (g). 

§  1436.  In  the  next  place,  as  to  equitable  debts,  or  a  legal  debt  on 
one  side,  and  an  equitable  debt  on  the  other,  there  is  great  reason  to 
believe,  that,  whenever  there  was  a  mutual  credit  between  the  parties, 
touching  such  debts,  a  set-off  was,  upon  that  ground  alone,  maintain- 
able in  equity ;  although  the  mere  existence  of  mutual  debts,  without 
such  a  mutual  credit,  might  not,  even  in  a  case  of  insolvency,  have 
sustained  it  (r).  But  a  set-oQ  was  ordinarily  allowed  in  equity,  only 
when  the  party,  seeking  the  benefit  of  it,  could  show  some  equitable 
ground  for  being  protected  against  his  adversary's  demand — the  mere 
existence  of  cross-demands  was  not  sufficient  (s).  A  fortiori  a  court 
of  equity  would  not  interfere,  on  the  ground  of  an  equitable  set-off, 
to  prevent  the  party  from  recovering  a  sum  awarded  to  him  for 
damages  for  a  breach  of  contract,  merely  because  there  was  an  un- 
settled account  between  him  and  the  other  party,  even  in  respect  to 
dealings  arising  out  of  the  same  contract  (t). 

§  1436a.  However,  where  there  were  cross-demands  between  the 
parties,  of  such  a  nature,  that  if  both  were  recoverable  at  law  they 
would  have  been  the  subject  of  a  set-off;  then,  and  in  such  a  case, 
if  either  of  the  demands  were  a  matter  of  equitable  jurisdiction,  the 
set-off  would  have  been  enforced  in  equity.  As,  for  example,  if  a 
legal  debt  were  due  to  the  plaintiff  by  the  defendant,  and  the  de- 
fendant was  the  assignee  of  a  legal  debt  due  to  a  third  person  from 
the  plaintiff,  which  had  been  duly  assigned  to  himself,  a  court  of  equity 
would  set  off  the  one  against  the  other,  if  both  debts  could  properly 
be  the  subject  of  a  set-off  at  law  (u).  But  except  under  special  circum- 
stances, courts  of  equity  never  allowed  cross-demands  existing  in 
different  rights  to  be  set  the  one  against  the  other,  although  agreement, 
express  or  implied,  might  confer  that  right  (x).  Nor  would  the  mere 
fact  of  the  cross-demand  existing,  of  itself  give  equitable  jurisdiction, 
nor  the  mere  fact  that  one  of  the  demands  was  held  by  a  trustee, 
that  is  to  say,  that  one  of  the  demands,  though  still  a  legal  demand, 
was,  as  regards  beneficial  ownership,  the  property  of  the  person  who 
was  liable  to  the  other  demand  (y).     And  where  an  equitable  chose  in 

iq)  Ex  parte  Flint,  1  Swanat.  33;  In  re  Goy  d  Co.,  Farmer  v.  Goy,  [1900]  2  Ch. 
149. 

(r)  Freeman  v.  Lomas,  9  Hare,  109. 

(s)  Rawson  v.  Samuel,  Cr.  &  Ph.  161. 

(t)  Rawson  v.  Samuel,  Cr.  &  Ph.  161;  Middleton  v.  Pollock,  Ex  parte  Nugee. 
L.  R.  20  Bq.  29. 

(u)  Clarke  v.  CoH,  Cr.  &  Phil.  154. 

(x)  Freeman  v.  Lomas,  9  Hare,  109;  Middleton  v.  Pollock,  Ex  parte  Nugee,  L.  E. 
20  Bq.  29. 

(y)  Middleton  v.  Pollock,  Ex  parte  Nugee,  L.  E.  20  Bq.  29. 


§  1436— 1437a.]  set-off.  605 

action  had  been  assigned,  the  debtor  could  not  set  off  against  the 
assignee  a  debt  which  had  accrued  to  him  from  the  assignor  since  the 
notice  of  assignment,  though  resulting  from  a  contract  entered  into 
previously,  unless  from  the  nature  of  the  transaction  it  appeared  to 
have  been  intended  by  the  original  parties  that  the  one  should  be  set 
off  against  the  other  (a). 

§  1487.  Thus,  courts  of  equity,  following  the  law,  would  not  allow 
a  set-off  of  a  joint  debt  against  a  separate  debt,  or  conversely,  of  a 
separate  debt  against  a  joint  debt;  or,  to  state  the  proposition  raore 
generally,  they  would  not  allow  a  set-off  of  debts  accruing  in  different 
rights  (a).  But  special  circumstances  might  occur  creating  an  equity, 
which  would  justify  even  such  an  interposition.  Thus,  for  example, 
if  a  joint  creditor  fraudulently  conducted  himself  in  relation  to  the 
separate  property  of  one  of  the  debtors,  and  misapplied  it,  so  that  the 
latter  was  drawn  in  to  act  differently  from  what  he  would  have  done 
if  he  had  known  the  facts,  that  would  constitute,  in  a  case  of  bank- 
ruptcy, a  sufficient  equity  for  a  set-off  of  the  separate  debt,  created  by 
such  misapplication  against  the  joint  debt  (b).  So,  if  one  of  the  joint 
debtors  were  only  a  surety  for  the  other,  he  might,  in  equity,  set  off 
the  separate  debt  due  to  his  principal  from  the  creditor;  for  in  such 
a  case,  the  joint  debt  is  nothing  more  than  a  security  for  the  separate 
debt  of  the  principal;  and,  upon  equitable  considerations  a  creditor, 
who  has  a  joint  security  for  a  separate  debt,  cannot  resort  to  that 
security  without  allowing  what  he  has  received  on  the  separate  account 
for  which  the  other  was  a  security  (c).  Indeed,  it  may  be  generally 
stated,  that  a  joint  debt  might,  in  equity,  have  been  set  off  against  a 
separate  debt,  where  there  was  a  clear  series  of  transactions,  establish- 
ing that  there  was  a  joint  credit  given  on  account  of  the  separate 
debt  (d). 

§  1437a.  There  is  no  doubt  that  courts  of  equity  did  eventually 
extend  the  doctrine  of  set-off,  and  claims  in  the  nature  of  set-off, 
beyond  the  law,  but  they  only  did  so  where  peculiar  equities  intervened 
between  the  parties  (e).  The  cases  in  which  a  set-off  was  allowed  on 
special  grounds  are  so  very  various  as  to  admit  of  no  comprehensive 
enumeration.  Some  cases,  however,  illustrative  of  the  doctrine,  may 
readily  be  put.  Thus,  if  an  agent,  having  a  title  to  an  estate,  should 
have  allowed  his  principal  to  expend  money  upon  the  estate  without 
any  notice  of  that  title,  he  would  not  have  been  permitted,  after  a 
recovery  at  law  in  ejectment,   to  maintain  an  action  at  law  against 

(z)  WaUon  v.  Mid-Wales  Railway,  L.  R.  2  C.  P.  593. 

(a)  Middleton  v.  Pollock,  Ex  parte  Nugee,  L.  E.  20  Bq.  29;  Middleton  v.  Pollock, 
Ex  parte  Knight  v.  Raymond,  L.  E.  20  Bq.  613. 

(6)  Ex  parte  Stephens,  11  Ves.  24;  Bechervaise  v.  Lewis,  L.  E.  7  C.  P.  372. 

(c)  Ex  parte  Hanson,  12  Ves.  346 ;  s.c.  18  Ves.  252. 

(d)  VulUamy  v.  Noble,  3  Meriv.  593. 

(e)  Rawson  v.  Samuel,  Cr.  &  Ph.  161;  Jones  v.  Mossop,  3  Hare,  568;  Freeman  v. 
Lomas,  9  Hare,  109;  Middleton  v.  Pollock,  Ex  parte  Nugee,  L.  E.  20  Bq.  29. 


606  EQUITY    JURISPRUDENCE.  [CH.    XXXVII. 

the  principal  for  mesne  profits;  but  courts  of  equity  would  require, 
that,  to  the  extent  of  the  improvements,  there  should  be  a  set-o£E  or 
compensation  allowed  to  the  principal,  against  the  mesne  profits  (/). 

§  14376.  A  person  who  purchased  goods  from  a  factor  who  sold 
them  in  his  own  name  could  set  off  a  debt  due  to  him  from  the  factor 
personally  in  the  same  way  as  if  the  factor  were  the  principal,  unless 
the  purchaser  had  notice  that  the  factor  was  not  the  principal,  nor  was 
this  right  affected  by  the  fact  that  the  factor-  on  selling  in  his  own 
name  without  disclosing  the  agency  was  acting  in  contravention  of 
the  express  directions  of  his  principal  (g).  But  the  executors  of  a 
testatrix  were  not  entitled  to  set  off  against  a  man  who  was  but  a 
debtor  and  a  residuary  legatee  of  the  testatrix  to  the  amount  of  the 
debt  against  the  share  of  the  debtor  (h).  Nor  even  now  can  a  director 
of  a  company  set  ofi  against  a  claim  for  a  breach  of  trust  any  money 
due  to  him  from  the  company  (i). 

§  1438.  We  may  conclude  this  very  brief  review  of  the  doctrine  of 
set-off,  as  recognised  in  courts  of  equity,  a  doctrine,  which  was  prac- 
tically of  rare  occurrence  in  cases  not  within  the  statutes  of  set-ofi, 
either  at  law  generally,  or  in  bankruptcy,  by  a  few  remarks  upon  the 
same  subject,  as  it  is  found  recognised  in  the  civil  law.  In  the  latter, 
the  doctrine  was  well  known  under  the  title  of  compensation,  which 
may  be  defined  to  be  the  reciprocal  acquittal  of  debts  between  two 
persons,  who  are  indebted,  the  one  to  the  other  (fc) ;  or,  as  it  is  perhaps 
better  stated  by  Pothier,  compensation  is  the  extinction  of  debts,  of 
which  two  persons  are  reciprocally  debtors  to  one  another,  by  the 
credits  of  which  they  are  reciprocally  creditors  to  one  another  (I).  The 
civil  law  itself  expressed  it  in  a  stiU  more  concise  form.  "  Compen- 
satio  est  debiti  et  crediti  inter  se  contributio  "  (m). 

§  1439.  The  civil  law\  treated  compensation  as  founded  upon  a 
natural  equity,  and  upon  the  mutual  interest  of  each  party  to  have 
the  benefit  of  the  set-off,  rather  than  to  pay  what  he  owed,  and  then 
to  have  an  action  for  what  was  due  to  himself.  "  Ideo,  compensatio 
neeessaria  est,  quia  interest  nostra  potius  non  solvere,  quam  solutum 
repetere  "  (n).  Baldus  adds  another  and  very  just  reason,  that  it 
avoids  circuity  of  action.     "  Quod  potest  brevius  per  unum  actum, 

(/)  Lord  Cawdor  v.  Lewis,  1  Y.  &  Coll.  Ex.  427. 

(g)  Ex  parte  Dixon,  In  re  Henley,  i  Ch.  D.  133.  See  Semenza  v.  Brinsley,  18 
C.  B.  N.  S.  467. 

(h)  In  re  Hodgson,  Hodgson  v.  Fox,  9  Ch.  D.  673. 

(t)  In  re  Carriage  Co-operative  Supply  Association,  27  Ch.  D.  322. 

(k)  Domat,  Civil  Law,  B.  4,  tit.  2,  §  1,  art.  1. 

(I)  Pothier  on  Oblig.  by  Evans,  u.  587  [n.  622  of  French  editions].  Pothier  has 
examined  the  whole  subject  with  great  ability,  and  given  a  Ml  exposition  of  the 
doctrines  of  the  civil  law,  in  his  treatise  on  Obligations,  Pt.  3,  ch.  4,  nn.  587  to  605 
[nn.  622  to  640  of  French  editions]. 

(m)  Dig.  Lib.  16,  tit.  2,  f.  1. 

(n)  Dig.  Lib.  16,  tit.  2,  f.  3.    See  also  Inst.  Lib.  4,  tit.  6,  §  30. 


§  14376—1441.]  SET-OFF.  607 

expediri  compensando,  incassum  protrahereter  per  plures  solutiones  et 
repetitiones  "  (o). 

§  1440.  It  has  been  truly  said,  that  the  doctrine  of  set-ofi  has  been 
borrowed  from  the  EomaJi  jurisprudence.  But  there  are  several  im- 
portant difEerences  between  compensation  in  the  civil  law,  and  set-off 
in  our  law  (p).  In  the  first  place,  in  our  law,  if  the  party  has  a  right 
of  set-off,  he  is  not  bound  to  exercise  it;  and  if  he  does  not  exercise 
it,  he  is  at  liberty  to  commence  an  action  afterwards  for  his  own 
debt  (g).  But  in  the  civil  law  it  was  otherwise;  for  the  cross-debt  to 
the  same  amount  was  by  mere  operation  of  law,  and  independent  of 
the  acts  of  the  parties,  extinguished  (r).  In  support  of  this  doctrine 
there  are  many  texts  of  the  civil  law.  "  Posteaquam  placuit  inter 
omnes,  id  quod  invicem  debetur,  ipso  jure  -compensari  (s).  Unus- 
quisque  creditorem  suum,  eundemque  debitorem,  petentem  summovet, 
si  paratus  est  compensare  (t).  Si  totum  petas,  plus  petendo  causa 
cadis  (m).  Si  quis  igitur  compensare  potens,  solvent,  condicere  poterit, 
quasi  indebito  soluto  "  (x). 

§  1441.  In  the  next  place,  in  our  law,  till  the  Judicature  Act, 
1873,  the  right  of  compensation  or  set-off  was  confined  to  debts, 
properly  so  called,  or  to  claims  strictly  terminating  in  such  debts. 
In  the  civil  law,  the  right  was  more  extensive;  for  not  only  might 
debts  of  a  pecuniary  nature  be  set  off  against  each  other,  but  debts  or 
claims  for  specific  articles  of  the  same  nature  (as  for  corn,  wine,  or 
cotton)  might  also  be  set  off  against  each  other.  All  that  was  neces- 
sary was  that  the  debt  or  claim  to  be  compensated,  should  be  certain 
and  determinate  and  actually  due,  and  in  the  same  right,  and  of  the 
same  kind,  as  that  on  the  other  side  (y).  The  general  rule  was : 
"  Aliud  pro  alio,  invito  creditori,  solvi  non  potest  («).     Ejus,  quod  non 

(o)  Cited  by  Pothier  on  Oblig.  n.  587  [n.  623  of  French  editions]. 

(p)  Mr.  Chancellor  Kent,  in  Duncan  v.  Lyon,  3  Johns.  Ch.  359,  used  the  following 
language  :  "  The  doctrine  of  set-off  was  borrowed  from  the  doctrine  of  compensation 
in  the  civil  law.  Sir  Thomas  Clarke  shows  the  analogy  ip  many  respects,  on  this  point, 
between  the  two  systems;  and  the  general  rules  in  the  allowance  of  compensation  or 
set-off  by  the  civil  law,  as  well  as  by  the  law  of  those  countries  in  which  that  system 
is  followed,  are  the  same  as  the  English  law.  To  authorise  a  set-off,  the  debts  must 
be  between  the  parties,  in  their  own  right,  and  must  be  of  the  same  kind  or  quality, 
and  be  clearly  ascertained  or  liquidated.  They  must  be  certain  and  determinate  debts. 
[Dig.  16,  tit.  2,  de  Compensationibus,  Code,  Lib.  4,  tit.  31,  1.  14,  and  Code,  Lib.  5, 
tit.  21,  1.  1;  Ersk.  Inst.  vol.  2,  525,  527;  Pothier,  Trait,  des  Oblig.  Nos.  587  te  605; 
Eerrifere  eur  Inst.  torn.  6,  110,  113.]"     Whitaker  v.  Rush,  Ambler  407. 

(g)  Pothier,  by  Evans,  App.  112,  No.  13;  Baskerville  v.  Browne,  2  Burr.  1229. 

(r)  Pothier  on  Oblig.  n.  599  [635]  ;  1  Domat,  B.  4,  tit.  2,  §  8,  art.  4. 

(s)  Dig.  Lib.  16,  tit.  2,  f.  21 ;  Pothier,  Pand.  Lib.  16,  tit.  2,  n.  3. 

(t)  Dig.  Lib.  16,  tit.  2,  f.  2;  Pothier,  Pand.  Lib.  16,  tit.  2,  n.  1. 

(u)  Pothier,  Pand.  Lib.  16,  tit.  2,  n.  3. 

(x)  Ibid.  n.  5;  Dig.  Lib.  16,  tit.  2,  f.  10,  §  1. 

(y)  Pothier  on  Oblig.  nn.  588,  590  [nn.  623,  626  of  the  French  editions]  ;  Pothier, 
Pand.  Lib.  16,  tit.  2,  nn.  11  to  24;  Cod.  Lib.  4,  tit.  31,  1.  141. 

(2)  Pothier  on  Oblig.  n.  588  [n.  623  of  the  French  editions]  ;  Dig.  Lib.  12,  tit.  1, 
1.  2,  §  1. 


608  EQUITY    JURISPEUDENCE.  [CH.' XXXVII. 

ei  debetur,  qui  convenitur,  sed  alii,  compensatio  fieri  non  potest  (a). 
Quod  in  diem  debetur,  non  compensabitur,  antequam  dies  venit, 
quanquam  dari  oporteat  (b).  Compensatio  debiti  ex  pari  speci,-  et 
causa  dispari,  admittitur;  velut,  si  pecuniam  tibi  debeam,  et  tu  mihi 
pecuniam  debeas,  aut  frumentum,  aut  oBetera,  hujusmodi,  licet  ex 
diverse  contractu,  compensare  vel  deducere  debes "  (c).  The  only 
exception  to  the  rule  was,  in  cases  of  deposits ;  for  it  was  said : 
' '  In  causa  depositi  compensatione  locus  non  est ;  sed  res  ipsa 
reddenda  est  "  (d). 

§  1442.  In  another  provision  of  the  civil  law,  we  may  distinctly 
trace  an  acknowledged  principle  of  equity  jurisprudence  upon  the 
same  subject  (e).  The  rule  that  compensation  should  be;  allowed  of 
such  debts  only  as  wece  due  to  the  party  himself,  and  in  the  same 
right,  had  an  exception  in  the  case  of  sureties.  A  person  who  was 
surety  for  a  debt  might  not  only  oppose,  as  a  compensation,  what 
was  due  from  the  creditor  to  himself,  but  also  what  was  due  to  the 
principal  debtor.  "  Si  quid  a  fidejussore  petatur,  sequissimum  est 
ehgere  fidejussorem,  quod  ipsi,  an  quod  reo  debetur,  compensare  malit ; 
sed  etsi,  utrumque  velit  compensare,  audiendus  est"  (/). 

§  1443.  There  was  another  exception  in  the  civil  law,  which  has 
not  received  the  same  favour  in  ours.  It  was  generally  true,  that  a 
debt,  due  from  the  creditor  to  a  third  person,  could  not  be  insisted  on 
by  the  debtor,  as  a  compensation,  even  with  the  assent  of  such  third 
person :  ' '  Creditor  compensate  non  cogitur  quod  alii,  quam  debitori 
suo,  debet;  quamvis  creditor  ejus  pro  eo,  qui  convenitur  ob  debitum 
proprium  velit  compensare  "  (g).  Yet,  where  the  debtor  had  procured 
a  cession  or  assignment  of  the  debt  of  such  third  person,  he  might, 
after  notice  to  the  creditor,  insist  upon  it  by  way  of  compensation. 
"  In  rem  suam  procurator  datus,  post  litis  contestationem,  si  vice 
mutua  conveniatur,  aequitate  compensationis  utetur  "  (h). 

§  1444.  These  may  suffice,  as  illustrations  of  the  civil  law  on  the 
subject  of  compensation  or  set-off.  The  general  equity  and  reason- 
ableness of  the  principles  upon  which  the  Eoman  superstructure  is 
founded,  make  it  a  matter  of  regret,  that  they  have  not  been  trans- 
ferred to  their  full  extent  into  our  system  of  equity  jurisprudence. 
Why,   indeed,    in   all   cases   of  mutual   debts,    independently   of   any 

(a)  Cod.  Lib.  4,  tit.  31,  1.  9;  Pothier,  Pand.  Lib.  16,  tit.  2,  n.  15. 
lb)  Dig.  Lib.  16,  tit.  2,  f.  7;  Potbier,  Pand.  Lib.  16,  tit.  2,  n.  12. 

(c)  Pothier,  Pand.  Lib.  16,  tit.  2,  n.  22. 

(d)  Pothier,  Pand.  Lib.  16,  tit.  2,  n.  8;  Cod.  Lib.  4,  tit.  31,  1.  11;  1  Domat,  Civ. 
Law,  B.  4,  tit.  2,  §  2,  art.  6. 

(e)  Ante,  §  1850. 

If)  Dig.  Lib.  16,  tit.  2,  f.  5;  Pothier,  Pand.  Lib.  16,  tit.  2,  n.  16;  Pothier  en 
Oblig.  D.  595  [631]. 

ig)  Dig.  Lib.  16,  tit.  2,  f.  18;  Pothier,  Pand.  Lib.  16,  tit.  2,  n.  16;  Pothier  .;d 
Oblig.  n.  594  [629]. 

(h)  Dig.  Lib.  16,  tit.  2,  f.  18;  Pothier,  Pand.  Lib.  16,  tit.  2,  n.  15;  Pothier  on 
Oblig.  n.  594  [n.  629  of  the  French  editions]. 


§  1442— 1444a.]  set-off.  609 

notion  of  mutual  credit,  courts  of  equity  should  not  have  at  once 
supported  and  enforced  the  doctrine  of  the  universal  right  of  set-off, 
as  a  matter  of  conscience  and  natural  equity,  it  is  noti  easy  to  say. 
Having  affirmed  the  natural  equity,  it  seems  difficult  to  account  for 
the  ground  upon  which  they  have  refused  the  proper  relief  founded 
upon  it.  The  very  defect  of  the  remedy  at  law  furnishes  an  almost 
irresistible  rea,son  for  such  equitable  relief.  The  doctrine  of  compen- 
sation has,  indeed,  been  felicitously  said  to  be  among  those  things 
quse  jure  aperto  nituntur  (i).  The  universality  of  its  adoption  in  all 
the  systems  of  jurisprudence,  which  have  derived  their  origin  from 
Roman  fountains,  demonstrates  its  persuasive  justice  and  sound 
policy  (&).  The  common  law,  in  rejecting  it  from  its  bosom,  seems  to 
have  reposed  upon  its  own  sturdy  independence,  or  its  own  stern 
indifference.  But  the  marvel  is,  that  courts  of  equity  should  have 
hesitated  to  foster  it,  when  their  own  principles  of  decision  seem  to 
demand  the  most  comprehensive  and  liberal  action  on  the  subject. 

§  1444a.  There  were  four  essentials  to  a  set-off  under  the  statutes 
2  Geo.  2,  c.  22,  and  8  Geo.  2,  c.  24 — (a)  it  must  have  been  for  a 
liquidated  sum  (Z);  (b)  it  must  have  existed  at  the  time  of  action 
brought  (w) ;  (c)  it  raust  have  existed  at  the  time  of  plea  pleaded  (n) ; 
and  (d)  it  must  have  existed  at  the  trial  (o).  The  statutes  of  Geo  2 
have  been  repealed,  but  the  jurisdiction  saved  by  the  Statute  Law 
Eevision  Act,  1884.  Now,  by  the  Judicature  Act,  1873  (36  &  37  Vict, 
c.  66),  s.  24,  sub-s.  3,  the  defendant  may  assert  any  equitable  estate 
or  right  or  other  matter  of  equity.  Further,  by  the  Rules  of  the 
Supreme  Court,  1883,  Order  XIX.,  rule  3,  the  defendant  may  set  off, 
or  set  up  by  way  of  counterclaim  against  the  claim  of  the  plaintiff, 
any  right  or  claim,  whether  such  set-off  or  counterclaim  sound  in 
damages  or  not,  and  such  set-off  or  counterclaim  shall  have  the  effect 
of  a  cross-action,  so  as  to  enable  the  court  to  pronounce  a  final  judg- 
ment in  the  same  action  both  on  the  original  and  on  the  cross-claim. 
The  claim  contemplated  by  the  rule  is  one  available  against  the 
plaintiff  personally  (p),  but  a  plaintiff  cannot  protect  himself  by 
sheltering  behind  a  stalking  horse  in  the  shape  of  a  trustee  (g).     But 

(i)  See  Mr.  Blunt's  note  to  Whitaker  v.  Rush,  Ambler,  408,  note  (6). 

(k)  See  Pothier  on  Oblig.  Ft.  3,  ch.  4,  nn.  587  to  605  [nn.  622  to  640  of  the  French 
editions]  ;  1  Stair's'  Inst.  B.  1,  ch.  18,  §  6 ;  Ersk.  Inst.  B.  3,  tit.  4,  §  11  to  20 ;  Heineco. 
Elem.  Juris.  Germ.  Lib.  2,  tit.  17,  §  475.  As  to  set-off  in  the  administration  of  estates, 
see  Taylor  v.  Taylor,  L.  B.  20  Bq.  156;  Middleton  v.  Pollock,  Ex  parte  Nugee,  L.  R. 
20  Bq.  29 ;  White  v.  Gordwell,  I/.  B.  20  Bq.  644. 

(!)  Grampton  v.  Walker,  3  BU.  &  E.  321. 

(m)  Braithwaite  v.  Coleman,  4  Nev.  &  M.  654;  Richards  v.  Jones,  2  Ex.  471. 

(n)  Dendy  v.  Powell,  3  M.  &  W.  442. 

(o)  Eyton  v.  Littledale,  4  Bx.  159. 

(p)  Baker  v.  Adam,  102  L.  T.  248;  Reeves  v.  Pope,  [1913]  1  K.  B.  637. 

(g)  Bankes  v.  Jarvis,  [1903]  1  K.  B.  549. 

E.J.  39 


610  EQUITY     JURISPRUDENCE.  [CH.    XXXVII. 

it  may  be  in  respect  of  a  cause  of  action  arising  after  the  original  action 
commenced,  and  before  trial  (r).  If  it  came  into  existence  puis  darrein 
continuance,  it  may  be  raised  by  amendment  (s). 

(t)  Ellis  V.  Munson,  35  L.  T.  585 ;  Beddall  v.  Maitland,  17  Ch.  D.  174. 
(s)  Ellis  V.  Munsm,  35  L.  T.  585. 


§    1445 — 1446.]  ESTABLISHING  WILLS.  611 


CHAPTER  XXXVIII. 


ESTABLISHING     WILLS. 


§  1445.  It  has  been  already  stated,  in  another  part  of  these  Com- 
mentaries, that  the  proper  jurisdiction,  as  to  the  validity  of  last  wills 
and  testaments,  belonged  to  other  tribunals  (a).  Where  a  will 
respected  personal  estate,  it  belonged  to  the  Court  of  Probate ;  and 
where  it  respected  real  estate,  it  belonged  to  the  courts  of  common 
law.  But,  although  this  is  regularly  true,  and  courts  of  equity  would 
not  in  contested  litigation  entertain  jurisdiction  to  determine  the 
validity  of  a  will;  yet  whenever  a  will  came  before  them,  as  an  incident 
in  a  cause,  they  necessarily  entertained  jurisdiction  to  some  extent 
ever  the  subject;  and  if  the  validity  of  the  will  was  admitted  by  the 
parties,  or  if  it  was  otherwise  established  by  the  proper  modes  of 
proof,  they  acted  upon  it  to  the  fullest  extent.  If  either  of  the  parties 
should  afterwards  bring  a  new  suit,  to  contest  the  determination  of 
the  validity  of  the  vidll  so  proved,  the  court  of  equity,  which  had  so 
determined  it,  would  certainly  on  the  old  practice  have  granted  a 
perpetual  injunction  (b). 

§  1446.  The  usual  manner  in  which  courts  of  equity  proceeded  in 
such  cases  was  this.  If  the  parties  admitted  the  due  execution  and 
validity  of  the  will,  it  was  deemed  ipso  facto  sufficiently  proved.  If 
the  will  were  of  personal  estate,  and  a  probate  thereof  was  produced 
from  the  proper  court,  that  was  ordinarily  deemed  sufficient.  But  if 
the  parties  were  dissatisfied  with  the  probate,  and  contested  the  validity 
of  the  will,  the  court  of  equity,  in  which  the  controversy  was  depend- 
ing, would  suspend  the  determination  of  the  cause,  in  order  to  enable 
the  parties  to  try  its  vaUdity  before  the  proper  tribunal,  and  would 
then  govern  itself  by  the  result.  If  the  will  were  of  real  estate,  ajid 
its  validity  were  contested  in  the  cause,  the  court  would,  in  like 
manner,  direct  its  validity  to  be  ascertained,  either  by  directing  an 
issue  to  be  tried,  or  an  action  of  ejectment  to  be  brought  at  law;  and 
would  govern  its  own  judgment  by  the  final  result  (c).     If  the  will 

(a)  Ante,  §  184,  238;  Allen  v.  McPherson,  1  H.  L.  C.  191;  Priestman  v.  Thomas, 
9  P.  D.  210. 

(6)  Sheffield  v.  Duchess  of  Buckinghamshire,  1  Atk.  628. 

(c)  Sheffield  v.  Duchess  of  Buckinghamshire,  1  Atk.  628;  Allen  v.  McPherson, 
1  H.  L.  C.  191;  Priestman  v.  Thomas,  9  P.  D.  210. 


612  EQUITY    JURISPRUDENCE.  [CH.    XXXVIII. 

were  established  in  either  case,  a  perpetual  injunction  might  be 
decreed   (d). 

§  1447.  But  it  was  often  the  primary,  although  not  the  sole,  object 
of  a  suit  in  equity,  brought  by  devisees  and  others  in.  interest,  to 
establish  the  validity  of  a  will  of  real  estate;  and  thereupon  to  obtain 
a  perpetual  injunction  against  the  heir-at-law,  and  others,  to  restrain 
them  from  contesting  its  validity  in  future.  In  such  cases  the  juris- 
diction, exercised  by  courts  of  equity,  was  somewhat  analogous  to  that 
exercised  in  cases  of  bills  of  peace;  and  it  was  founded  upon  the  like 
considerations  in  order  to  suppress  interminable  litigation,  and  to  give 
security  and  repose  to  titles  (e).  In  every  case  of  this  sort,  courts  of 
equity  would,  unless  the  heir  waived  it,  direct  an  issue  of  devisavit 
vel  non,  to  ascertain  the  validity  of  the  wiU  (/).  According  to  the 
course  of  modem  decisions,  the  heir  had  an  option  either  to  bring  an 
action  of  ejectment,  or  to  have  an  issue  of  devisavit  vel  non.  But  it 
would  not  feel  itself  bound  by  a  single  verdict  either  way,  if  it  were 
not  entirely  satisfactory;  but  it  would  direct  new  trials,  until  there 
was  no  longer  any  reasonable  ground  for  doubt.  But  a  new  trial  would 
not  be  directed  unless  there  were  substantial  ground  for  believing  that, 
on  a  second  trial,  other  evidence  of  a  weighty  nature  bearing  against 
the  existing  conclusion  could  and  would  be  produced,  which  was  not 
heard  before  (g).  The  general  rule  established  in  courts  of  equity 
was,  that,  upon  every  such  issue  and  trial  at  law,  all  the  witnesses  to 
the  will  should  be  examined,  if  practicable,  unless  the  heir  should 
have  waived  the  proof.  But  the  rule  was  not  absolutely  inflexible, 
but  it  would  yield  to  peculiar  circumstances  (h).  When  by  these 
means,  upon  a  verdict,  the  validity  of  the  will  was  fully  established, 
the  court  would  by  its  decree  declare  it  to  be  well  proved,  and  that  it 
ought  t-o  be  established,  and  would  grant  a  perpetual  injunction  (i). 

§  1448.  If,  however,  the  devisees  had  no  further  immediate  object, 
than  merely  to  establish  the  will  by  perpetuating  the  testimony  of  the 
witnesses  thereto,  this  was  and  may  be  done  (as  we  shall  hereafter 
see)  by  a  proper  bill  for  the  purpose;  and  the  latter  is,  indeed,  what  is 
usually  meant  by  proving  a  will  in  chancery  (fc). 

§  1449.  It  may  be  proper,  also,  to  take  notice,  in  this  place 
(although  it  more  frequently  arose  in  the  exercise  of  the  auxiliary  or 

id)  Leighton  v.  Leighton,  1  P.  Wms.  671. 

(e)  Leighton  v.  Leighton,  1  P.  Wms.  671.  See  ante,  §  853,  859.  The  heir-at-law 
cannot  come  into  equity,  for  the  purpose  of  having  an  issue  to  try  the  validity  of  the 
will  at  law,  unless  it  is  by  consent ;  for  he  may  bring  an  ejectment.  But  if  there  are 
any  impediments  to  the  proper  trial  of  the  merits  on  such  an  ejectment,  he  may  come 
into  equity  to  have  them  removed.  Jones  v.  Jones,  3  Meriv.  161,  170;  Bates  v. 
Graves,  2  Ves.  Jun.  288.     See  also  Bootle  \.  Blundell,  19  Ves.  502. 

(/)  Pemberton  v.  Pemberton,  11  Ves.  53;  s.c.  13  Ves.  290;  Cooke  v.  Cholmonde- 
ley,  2  Mac.  &  G.  18.  (g)  Waters  v.  Waters,  2  De  G.  &  Sm.  591. 

(h)  Tatham  v.  Wright,  2  Euss.  &  M.  1. 

(i)  Jeremy  on  Bq.  Jurisd.  B.  3,  ch.  1,  §  2,  pp.  297,  298,  and  oases  before  cited. 

(7c)  3  Black.  Comm.  450. 


§  1447 — 14496.]  establishing    wills.  613 

assistant  jurisdiction),  that  courts  of  equity,  in  cases  of  this  sort, 
where  the  original  will  was  lodged  in  the  custody  of  the  registrar  of 
the  Probate  Court,  and  it  might  be  necessary  to  be  produced  before 
witnesses,  resident  abroad,  whose  testimony  was  to  be  taken  under  a 
commission  to  prove  its  due  execution,  would  direct  the  original  will 
to  be  delivered  out  by  such  officer  to  a  fit  person,  to  be  named  by  the 
party  in  interest;  such  party  first  giving  security,  to  be  approved  by 
the  judge  of  the  Ecclesiastical  Court.,  to  return  the  same  within  a 
specified  time.  If  there  were  any  dispute  about  the  security  for  the 
safe  custody  and  return  of  the  will,  it  was  referred  to  a  master  to 
settle  and  adjust  the  same  (I).  If  the  commission  was  to  be  executed 
within  the  realm,  and  the  witnesses  wers  therein,  the  court  would 
direct  the  original  will  to  be  brought  into  its  own  registry,  to  lie  there, 
until  the  court  had  done  with  it  (m) ;  or  to  be  delivered  out  on  giving 
security  (w).  It  is  doubtful  if  this  pi^ocedure  would  be  followed  in 
England  at  the  present  time. 

§  1449a.  In  a  case  where  the  title  was  derived  under  a  will  which 
was  suspicious,  it  appearing  that  the  heir  had  failed  in  an  action  of 
.ejectment,  and  afterwards  in  a  motion  for  a  new  trial,  and  where  the 
master  reported  in  favour  of  the  title;  the  Lord  Chancellor  held,  on 
appeal,  reversing  the  decree  of  the  Vice-Chancellor,  that  it  was  more 
consonant  with  the  principles  of  the  court,  that  the  validity  of  the 
will  should  be  conclusively  determined,  if  possible,  between  the  vendor 
and  the  heir,  than  that  it  should  be  left  to  be  litigated  between  the 
heir  and  purchaser,  after  the  purchase-money  had  been  paid  (o).  In 
a  case  before  Vice-Chancellor  Wood,  at  the  suit  of  the  devisee  against 
the  heir,  this  subject  was  very  elaborately  discussed,  and  the  history 
of  this  branch  of  equity  jurisprudence  traced  with  great  minuteness. 
As  the  practice  has  ceased  to  possess  any  importance  for  at  least  half 
a  century,  it  is  sufficient  to  refer  to  the  case  by  name  (p). 

§  1449fc.  But  it  is  now  settled  that  a  purchaser  of  real  estate,  the 
title  to  which  is  derived  under  a  will,  is  not  entitled  to  have  the  will 
established,  or  to  have  the  conveyance  of  the  heir  to  him,  unless  some 
reasonable  ground  exists  for  doubting  the  validity  of  the  will  (g). 

1.1)  Frederick  v.  Aynscombe,  1  Atk.  627. 
(m)  Frederick  v.  Aynscombe,  1  Atk.  627. 
(n)  Morse  v.  Roach,  2  Str.  961. 
(o)  Grove  v.  Bastard,  2  Phil.  619. 

(p)  Boyse  v.  Rossborough,  Kay  71,  1  Kay  &  J.  124,  3  De  G.  M.  &  G.  817,  6  H.  L. 
C.  1. 

(q)  M'Culloeh  v.  Gregory,  3  Kay  &  J.  12. 


614  EQUITY    JURISPEUDENCB.  [CH.    XXXIX. 


CHAPTER    XXXIX. 

AWARDS. 

§  1450.  Courts  of  equity  also  formerly  exercised  a  large  jurisdiction 
in  matters  of  Awards.  But,  by  means  of  statutes  finally  embodied  in 
the  Arbitration  Act,  1889  (52  &  53  Vict.  c.  49),  the  jurisdiction  came 
to  be  rarely  exercised.  It  may  not,  however,  be  without  use  to  refer 
to  some  of  the  more  ordinary  cases  in  which  that  jurisdiction  was 
originally  exerted,  and  still  may  be  exerted,  in  cases  where  no  statute 
interferes  with  the  due  exercise  thereof.  And  it  is  constantly  to  be 
borne  in  mind  that  the  subsequent  remarks,  even  when  not  so 
expressly  qualified,  are  to  be  understood  with  this  limitation,  that 
there  are  no  statutable  provisions  which  vary  or  control  the  general 
jurisdiction  of  equity  in  matters  of  award  (a). 

§  1451.  In  cases  of  fraud,  mistake,  or  accident,  courts  of  equity 
could,  in  virtue  of  their  general  jurisdiction,  interfere  to  set  aside 
awards  upon  the  same  principles,  and  for  the  same  reasons,  which 
justified  their  interference  in  regard  to  other  matters,  where  there 
was  no  adequate  remedy  at  law  (b).  And  if  there  were  no  statute  to  the 
contrary,  an  agreement  by  the  party  on  entering  into  an  arbitration, 
not  to  bring  any  action  or  suit  in  equity  to  impeach  the  award  made 
under  it,  was  held  not  to  be  obligatory,  if  there  were  in  fact,  from 
fraud,  or  mistake,  or  accident,  or  otherwise,  a  good  ground  to  impeach 
it,  or  to  require  it  to  be  set  aside  (c).  But  if  the  parties  had  agreed 
to  leave  the  determination  of  matters  of  law  to  the  arbitrator,  the 
award  could  not  be  impeached  in  equity  for  error  in  law  any  more 
than  it  could  in  a  court  of  common  law  (d). 

§  1452.  At  the  common  law  there  was  no  jurisdiction  to  set  aside 
an  award  except  upon  a  reference  under  an  order  of  the  court;  and 
every  objection  must  have  been  based  upon  matter  apparent  upon  the 
face  of  the  award,  or  of  some  paper  incorporated  therewith  under  the 

(a)  Com.  Dig.  Chancery,  2  K.  1  to  6;  Bac.  Abr.  ATbitration  and  Award,  B.  The 
standard  textbook  usually  consulted  is  Eussell,  Arbitration  and  Award. 

(b)  Emery  v.  Wase,  5  Ves.  846;  Mills  v.  Bowyers'  Co.,  3  K.  &  J.  66. 

(c)  See  Nichols  v.  Ghalie,  14  Vee.  264,  269;  Nichols  v.  Roe,  3  Myl.  &  K.  431; 
Street  v.  Rigby,  6  Ves.  815;  Gheslyn  v.  Dalby,  2  Y.  &  C.  Ex.  170. 

(d)  Young  v.  Walter,  9  Ves.  364.    See  Doe  v.  Emmerson,  9  L.  T.  0.  S.  199. 


§  1450—1454.]  AWARDS.  615 

hand,  or  hand  and  seal,  of  the  arbitrator  or  umpire  (e).  It  has  been 
decided  that  the  objection  might  be  based  upon  matter  appearing  in 
an  affidavit  of  an  arbitrator  (/).  This  decision  has  been  canvassed, 
but  met  with  the  approval  of  no  less  an  authority,  than  Lord 
Blackburn  {g).  Thus,  for  example,  fraud,  partiality,  misconduct,  or 
mistake  of  the  arbitrators,  was  not  admissible  to  defeat  it.  But 
courts  of  equity  would,  in  all  such  cases,  grant  relief,  and,  upon  due 
proofs,  would  set  aside  the  award,  and  now  the  rule  of  equity  will 
prevail.  The  grounds  on  which  an  award  will  be  set  aside  are,  first, 
that  the  arbitrators  have  awarded  what  was  out  of  their  power. 
Secondly,  corruption,  or  that  they  have  proceeded  contrary  to  the 
principles  of  natural  justice,  though  there  is  no  corruption,  as  if  with- 
out reason  they  will  not  hear  a  witness.  Thirdly,  that  they  have 
proceeded  upon  mere  mistake,  which  they  themselves  admit  (h). 
Corruption  cannot  be  proved  by  the  admission  of  the  arbitrator  (i). 

§  1453.  In  regard  to  a  mistake  of  the  arbitrators,  it  may  be  in 
a  matter  of  fact,  or  in  a,  matter  of  law.  If  upon  the  face  of  the 
award,  there  is  a  plain  mistake  of  law,  or  of  fact,  material  to  the 
decision,  which  misled  the  judgment  of  the  arbitrators,  there  can  be 
little  or  no  reason  to  doubt  that  courts  of  equity  will  grant  relief.  But 
the  difficulty  is,  whether  the  mistake  of  fact  or  of  law  is  to  be  made 
out  by  extrinsic  evidence;  and,  whether  a  mistake  of  law  upon  a 
general  submission,  involving  the  decision  both  of  law  and  of  fact, 
constitutes  a  valid  objection.  Upon  these  points,  the  decisions  of 
courts  of  law  and  courts  of  equity  are  not  reconcilable  with  each 
other;  and  it  is  not  easy  to  lay  down  any  doctrine,  which  may  not  be 
contradicted  by   some   authority. 

§  1454.  Perhaps  the  following  will  be  found  to  be  the  doctrines 
most  reconcilable  with  the  leading  authorities.  Arbitrators,  being  the 
chosen  judges  of  the  parties,  are,  in  general,  to  be  deemed  judges  of 
the  law,  as  well  as  of  the  facts,  applicable  to  the  case  before  them. 
If  no  reservation  is  made  in  the  submission,  the  parties  are  presumed 
to  agree,  that  every  question,  both  as  to  law  and  fact,  necessary  for 
the  decision,  is  to  be  included  in  the  arbitration.  Under  a  general 
submission,  therefore,  the  arbitrators  have  rightfully  a  power  to  decide 
on  the  law  and  on  the  fact.  And,  under  such  a  submission,  they  are 
not  bound  to  award  on  mere  dry  principles  of  law ;  but  they  make  their 
award  according  to  the  principles  of  equity  and  good  conscience  (fc). 

(e)  Kent  v.  Elstob,  3  East,  18;  Shannan  v.  Bell^  5  M.  &  S.  504;  Hodgkinson  v. 
Fernie,  3  C.  B.  N.  S.  189. 

.(/)  Jones  V.  Carry,  5  Bing.  N.  C.  187. 

(g)  Duke  of  Bucdeuch  v.  Metropolitan  Board  of  Works,  L.  E.  5  Ex.  221,  232. 

(h)  Per  Lord  Commissioner  Wilson,  Morgan  v.  Mather,  2  Ves.  15,  18;  Mills  v. 
Bowyers'  Co.,  3  Kay  &  J.  66. 

(t)  In  re  WhiteUy  S  Roberts,  [1891]  1  Ch.  558. 

(fe)  Morgan  v.  Mather,  2  Ves.  Jun.  15;  Produce  Brokers'  Co.  v.  Olympia  Oil  and 
Cake  Co.,  [1916]  A.  C.  314. 


'616  EQUITY    JURISPRUDENCE.         •  [CH.    XXXIX. 

Subject,  therefore,  to  the  qualifications,  hereafter  mentioned,  a, 
general  award  cannot  be  impeached  collaterally,  or  by  evidence 
aliunde,  for  any  mistake  of  law  or  of  fact,  unless  there  be  some  fraud 
or  misbehaviour  in  the  arbitrators.  These  qualifications  will  now  be 
stated. 

§  1455.  First;  in  regard  to  matters  of  law.  If  arbitrators  refer 
any  point  of  law  to  judicial  inquiry,  by  spreading  it  on  the  face  of 
their  award,  and  they  mistake  the  law  in  a  palpable  and  material 
point,  their  award  will  be  set  aside  (I).  If  they  admit  the  law,  but 
decide  contrary  thereto  upon  principles  of  equity  and  good  conscience, 
although  such  intent  appear  upon  the  face  of  the  award,  it  will  con- 
stitute no  objection  to  it.  If  they  mean  to  decide  strictly  according 
to  law,  and  they  mistake  it,  although  the  mistake  is  made  out  by 
extrinsic  evidence,  that  will  be  sufficient  to  set  it  aside  (m).  But 
their  decision  upon  a  doubtful  point  of  law,  or  in  a  case  where  the 
question  of  law  itself  is  designedly  left  to  their  judgment  and  decision, 
will  generally  be  held  conclusive  (n). 

§  1456.  Secondly;  in  regard  to  matters  of  fact,  the  judgment  of 
the  arbitrators  is  ordinarily  deemed  conclusive  (o).  If,  however,  there 
is  a  mistake  of  a  material  fact  apparent  upon  the  face  of  the  award; 
or,  if  the  arbitrators'  admit  the  mistake,  and  state  it  (although  it  is 
not  apparent  on  the  face  of  the  award);  and  if,  in  their  own  view,  it 
is  material  to  the  award,  then,  although  made  out  by  extrinsic 
evidence,  courts  of  equity  will  grant  relief  (p). 

§  1457.  Courts  of  equity  would  not  enforce  the  specific  perform- 
ance of  an  agreement  to  refer  any  matter  in  controversy  between 
adverse  parties,  deeming  it  against  public  policy  to  exclude  from  the 
appropriate  judicial  tribunals  of  the  State  any  persons  who,  in  the 
ordinary  course  of  things,  have  a  right  to  sue  there  (q).  Neither  will 
they,  for  the  same  reason,  compel  arbitrators  to  make  an  award  (?■) ; 
nor,  when  they  have  made  an  award,  will  they  compel  them  to  disclose 

(I)  Knox  V.  Symmonds,  1  Ves.  Jtin.  369;  Kent  v.  Elstob,  3  East,  18. 

(m)  Young  v.  Walter,  9  Ves.  364,  366 ;  Blennerhassett  v.  Day,  2  Ball  &  Beat.  120 ; 
Delver  v.  Barnes,  1  Taunt.  48;  Richardson  v.  Nourse,  3  Barn.  &  Aid.  237. 

(n)  Young  v.  Walter,  9  Ves.  364 ;  Chace  v.  Weetmore,  13  East,  367 ;  Campbell  v. 
Twemlow,  1  Price,  81;  Steff  v.  Andrews,  2  Mad.  6,  9;  Wood  v.  Griffith,  1  Swanst.  43; 
Sharman  v.  Bell,  5  M.  &  S.  504. 

(o)  See  Price  v.  Williams,  1  Ves.  June.  365;  s.c.  3  Bro.  C.  C.  163;  Morgan  v. 
Mather,  2  Ves.  Jun.  15  to  18,  20,  22;  Dick  v.  Milligan,  2  Ves.  Jun.  23;  Goodman  v. 
Sayers,  2  Jac.  &  "Walk.  249,  259. 

(p)  Knox  V.  Symmonds,  1  Ves.  Jun.  369;  Rogers  v.  Dallimore,  6  Taunt.  Ill;  In 
re  Dare  Valley  Ry.,  L.  E.  6  Bq.  429;  Duke  of  Buccleuch  v.  Metropolitan  Board  of 
Works,  L.  E.  5  H.  L.  418. 

(g)  Agar  v.  Macklew,  2  Sim.  &  St.  418.  See  In  re  Smith  and  Nelson,  25  Q.  B  D 
545. 

(r)  Kyd  on  Awards,  ch.  4,  p.  100  (2nd  edit.).  In  this  respect  our  law  differs  from 
the  Eoman  law ;  for  by  the  latter,  arbitrators  would,  unless  under  special  circumstances, 
be  compelled  to  make  an  award,  when  they  had  taken  the  office  upon  themselves.  Dig. 
Lib.  4,  tit.  8,  f.  3,  §  1,  3;  Kyd  on  Awards,  ch.  4,  pp.  98,  99,  and  note  (2nd  edit.). 


§  1455—1460.]  AWARDS.  617 

the  grounds  of  their  judgment  (s).  The  latter  doctrine  stands  upon  the 
same  ground  of  pubhc  policy  as  the  others;  that  is  to  say,  in  the 
first  instance,  not  to  compel  a  resort  to  these  domestic  tribunals, 
and,  on  the  other  hand,  not  to  disturb  their  decisions,  when  made, 
except  upon  very  cogent  reasons. 

§  1458.  When  an  award  has  actually  been  made,  and  it  is  unim- 
peached  and  unimpeachable,  it  constitutes  a  bar  to  any  suit  for  the 
same  subject-matter,  both  at  law  and  in  equity.  And  courts  of 
equity  will,  in  proper  cases,  enforce  a  specific  performance  of  an 
award,  which  is  unexceptionable,  and  which  has  been  acquiesced  in 
by  the  parties,  if  it  is  for  the  performance  of  any  acts  by  the  parties 
in  specie,  such  as  a  conveyance  of  lands;  and  such  a  specific  per- 
formance will  be  decreed,  aknost  as  if  it  were  a  matter  of  contract, 
instead  of  an  award  (t). 

§  1458a..  A  court  of  equity  has  power  by  injunction  to  prevent 
an  arbitrator  against  whom  corruption  is  alleged,  from  proceeding 
with  an  arbitration  (u).  But  a  court  of  equity  has  not,  even  since  the 
Judicature  Act,  power  by  injunction  to  prevent  an  arbitrator  from 
proceeding  with  an  arbitration,  on  the  sole  ground  that  the  proposed 
arbitration  is  on  a  matter  outside  the  agreement  to  refer,  and  that 
the  proceedings  will  therefore  be  futile  and  vexatious.  For  the 
provisions  of  sub-s.  8,  s.  25,  of  the  Judicature  Act,  1873,  that  "  a 
mandamus  or  an  injunction  may  be  granted  or  a  receiver  appointed 
by  an  interlocutory  order  of  the  court  in  all  cases  in  which  it  shall 
appear  to  the  court  to  be  just  or  convenient  that  such  order  should  be 
made,"  does  not  confer  on  a  court  of  equity  any  power  it  did  not 
formerly  possess  (x). 

§  1459.  But,  as  the  specific  performance  of  awards,  as  well  as  of 
contracts,  rests  in  the  sound  discretion  of  the  courts,  if,  upon  the 
face  of  the  award  or  otherwise,  it  appears  that  there  are  just  objections 
to  enforcing  it,  courts  of  equity  will  not  interfere  (y).  On  the  other 
hand,  where  an  award  has  been  long  acquiesced  in  or  acted  upon 
by  both  parties,  even  although  objections  might  have  been  originally 
urged  against  it,  an  application  to  set  it  aside  will  not  be 
entertained  («). 

§  1460.  It  is  curious  to  remark  the  coincidences  between  the  civil 
law  and  our  law,  in  regard  to  arbitrations  and  awards.  Whether  we 
are  to  attribute  this  to  the  origin  of  the  latter  in  the  established 
jurisprudence  of  the  former;  or  to  the  same  good  sense,   prevailing 

(s)  Anon.,  3  Atk.  644.  See  Willesford  v.  Watson,  L.  E.  14  Eq.  572;  Law  v. 
Garret,  8  Ch.  D.  26. 

(t)  Wood  V.  Griffith,  1  Swanst.  43;  Nickels  v.  Hancock,  7  De  G.  M.  &  G.  300. 

(tt)  Pickering  v.  Cape  Town  By.,  L.  E.  1  Bq.  84;  Beddow  v.  Beddow,  9  Ch.  D.  89. 

(x)  North  London  Ry.  v.  Great  Northern  Ry.,  11  Q.  B.  D.  30. 

(j/)  Auriol  V,  Smith,  1  Turn.  &  Euss.  187;  Wood  v.  Griffith,  1  Swanst.  43;  Nickels 
V.  Hancock,  7  De  G.  M.  &  G.  300. 

(z)  Jones  V.  Bennett,  1  Bro.  P.  C.  328;  Cf.  Rogers  v.  Dallimore,  1  Taunt.  111. 


618  KtJUITY    JURISPRUDENCE.  '  [CH.    XXXIX. 

in  different  nations,  and  establishing  the  like  equitable  principles 
on  the  same  subject,  founded  on  public  policy  and  private  con- 
venience, it  is  not  necessary  to  discuss.  But  it  is  certain  that  the 
Roman  law  has  much  to  commend  it  in  the  rea:sonableness  of  its 
doctrines. 

§  1461.  -Arbitration,  called  compromise  (compromissum),  was  a 
mode  of  terminating  controversies  much  favoured  in  the  civil  law, 
and  was  usually  entered  into  by  reciprocal  covenants  or  obligations, 
with  a  penalty,  or  with  some  other  certain  or  implied  loss  (a) ;  and 
the  award  was  deemed  to  partake  of  the  character  of  a  judicial  pro- 
ceeding (&).  "Compromissum  ad  similitudinem  judiciorum  redigitur, 
et  ad  finiendas  lites  pertinet  (c).  Ex  compromisso  placet  exceptionem 
non  nasci,  sed  poense.  petitionem  "  (d).  The  general  conclusiveness  of 
awards,  when  made  within  the  legitimate  powers  of  the  arbitrators, 
was  firmly  established  upon  the  same  principles,  which  ought 
universally  to  prevail,  to  suppress  litigation.  "  Stari  autem  debet 
sententiae  arbitri,  quam  de  re  dixerit,  sive  sequa,  sive  iniqua  sit;  et 
sibi  imputet,  qui  compromisit  "  (e). 

§  1462.  The  leading,  though  not  the  only,  exception  to  the  con- 
clusiveness of  awards,  when  regularly  made,  was  the  fraud  or  corrup- 
tion of  the  parties,  or  of  the  arbitrators.  "  Posse  eum  uti  doli  mali 
exeeptione."  Again:  "  Etiamsi  appellari  non  potest,  doli  mali  excep- 
tionem in  pcensB  petitione  obstaturam  "  (/).  Another  exception  was, 
that  the  arbitrators  had,  in  their  award,  exceeded  their  authority; 
for  if  they  had,  it  was  void.  "  De  officio  arbitri  tractantibus  sciendum 
est,  omnem  tractatum  ex  ipso  compromisso  sumendum.  Nee  enim 
aliud  illi  lieebit,  quam  quod  ibi,  ut  efficere  posset,  cautum  est.  Non 
ergo  quodlibet  statuere  arbiter  poterit,  nee  in  re  qualibet ;  nisi  de 
qua  re  compromissum  est,  et  quatenus  compromissum  est  "  (g). 

§  1463.  Subject  to  exceptions  of  this  nature,  it  has  been  justly 
remarked  by  an  eminent  judge,   that  the  praetor  at  Rome  would  not 

(o)  Pothier,  Pand.  Lib.  i,  tit.  8,  n.  13,  U ;  Dig.  Lib.  4,  tit.  8,  f.  11,  §  2,  3;  ibid, 
f,  13,  §  1,  ibid.  f.  27,  §  6. 

(b)  If  there  was  a  simple  agreement  to  stand  by  the  award,  without  any  penalty 
or  equivalent,  it  seems  that  in  the  civil  law  there  was  originally  no  remedy  to  enforce 
it.  Justinian,  in  some  cases,  but  not  adequately  (as  it  should  seem),  provided  for  this 
defect.  See  Kyd  on  Awards,  ch.  1,  pp.  8,  9  (2nd  edit.),  which  cites  Dig.  Lib.  4,  tit.  8, 
f.  27,  §  6,  7,  where  it  is  said  :  "  Bt,  si  quis  presens  arbitrum  sententiam  dicere  pro- 
hibuit,  poena  committetur.  [§  6.]  Sed,  si  poena  non  fuisset  adjecta  compromisso,  sed 
fiimpliciter,  sententias  stari  quis  promiserit,  incerti  adversus  eum  foret  actio.  [§  7.]  " 
See  also  Cod.  Lib.  2,  tit.  56,  1.  4,  5. 

(c)  1  Domat,  B.  1,  tit.  14,  §  1,  art.  2;  Dig  Lib.  4,  tit.  8,  f.  1;' Pothier,  Pand.  Lib. 
4,  tit.  8,  n.  1. 

(d)  1  Domat,  B.  1,  tit.  14,  §  1,  art.  3;  Dig.  Lib.  4,  tit.  8,  f.  2. 

(e)  Dig.  Lib.  4,  tit.  8,  f.  27,  §  2 ;  Pothier,  Pand.  Lib.  4,  tit.  8,  nn.  39,  40. 

(/)  Dig.  Lib.  4,  tit.  8,  f.  32,  §  14;  ibid.  1.  31;  Pothier,  Pand.  Lib.  4,  tit  8  nn.  40 
47,  48. 

(g)  Dig.  Lib.  4,  tit.  8,  f.  32,  §  15 ;  1  Domat,  B.  1,  tit.  4,  §  2,  art.  6;  Pothier,  Pand 
Lib.  4,  tit.  8,  nn.  41,  42. 


§  1461—1463.]  AWARDS.  619 

interfere  with  the  decisions  of  these  domestic  tribunals  for  the  very 
reasons  which  have  been  adopted  in  modem  times;  because  they 
put  an  end  to  suits,  and  the  arbitrators  were  judges  of  the  parties' 
own  choice  (h).  "  Tametsi  neminem  praetor  cogit  arbitrium  recipere 
(quoniam  hsec  res  hbera  et  soluta  est,  et  extra  necessitatem  juris- 
dictionis  posita) ;  attamen,  ubi  semel  quis  in  se  receperit  arbitrium, 
ad  curam  et  sollicitudinem  suam  hanc  rem  pertinere  prsetor  putat ; 
non  tantum,  quod  studeret  lites  finiri,  verum  quoniaan  non  deberent 
deeipi,  qui  eum,  quasi  virum  bonum,  disceptatorem  inter  se  elige- 
runt"  (z).  Indeed,  when  once  arbitrators  had  taken  upon  themselves 
that  office  they  were  compellable  by  the  praetor  to  make  an  award. 
"  Quisquamne  potest  negare,  aequissimum  fore,  prsetorem  interponere 
se  debuisse,  ut  officium,  quod  in  se  recepit,  impleret.  Et  quidem 
arbitrum  cujuscunque  dignitatis  coget  officio,  quod  suseeperit  per- 
fungi  "  (fe).  In  this  respect,  there  is  a  marked  distinction  between  our 
law  and  the  civil  law  (I). 

(h)  Mr.  Chancellor  Kent,  in  Underhill  v.  Van  Gortlandt,  2  Johns.  Ch.  368. 
(t)  Dig.  Lib.  4,  tit.  8,  f.  3,  §  1;  Pothier,  Pand.  Lib.  4,  tit.  8,  n.  22. 
(fe)  Dig.  Lib.  4,  tit.  8,  f.  3,  §  1,  3;  Kyd  on  Awards,  98,  99,  and  note  (2nd  London 
edit.).  (!)  Ante,  §  1457. 


620  EQUITY     JURISPRUDENCE.  [CH.    XL. 


CHAPTER   XL. 

WRITS  OF  NE  EXEAT  REGNO  AND  SUPPLICAVIT. 

§  1464.  Having  thus  reviewed  most  of  the  branches  of  the  exclusive 
jurisdiction  of  courts  of  equity,  which  arise  from  or  are  dependent 
upon,  the  subject-matter  of  the  controversy,  we  are  next  led  to  the 
consideration  of  those  branches  of  exclusive  jurisdiction,  which  arise 
from,  or  are  dependent  upon,  the  nature  of  the  remedy  to  be  ad- 
ministered. The  peculiar  remedies  in  equity  in  cases  of  concurrent 
jurisdiction,  have  already  been  fully  discussed;  and  much,  therefore, 
which  would  otherwise  be  appropriate  for  remark  in  this  place,  has 
been  already  anticipated.  The  peculiar  remedies  connected  with  the 
exclusive  jurisdiction  in  equity  seem  to  have  been  principally  the 
process  of  bill  of  discovery,  properly  so  called;  the  process  of  bill  for 
perpetuating  evidence ;  and  the  processes,  called  the  writ  of  Ne  Exeat 
Eegno,  and  the  writ  of  Supplicavit.  The  two  former  are  properly 
embraced  in  what  is  called  the  auxiliary  or  assistant  jurisdiction  of 
courts  of  equity;  and  will,  therefore,  be  reserved  for  examination 
hereafter.     The  two  latter  will  be  discussed  in  the  present  chapter. 

§  1465.  The  writ  of  Ne  exeat  regno,  or,  as  it  is  sometimes  termed, 
Ne  exeat  regnum,  is  a  prerogative  writ,  which  is  issued,  as  its  name 
imports,  to  prevent  a  person  from  leaving  the  realm  (a).  It  is  said 
that  it  is  a  process  unknown  to  the  ancient  common  law,  which,  in 
the  freedom  of  its  spirit,  allowed  every  man  to  depart  the  realm  at  his 
pleasure  (b).  Its  origin  is  certainly  obscure.  But  it  may  be  traced  up 
to  a  very  early  period,  although  some  have  thought  that  its  date  is 
later  than  the  reign  of  King  John,  since,  by  the  great  charter  granted 
by  him,  the  unlimited  freedom  to  go  from  and  return  to  the  kingdom 
at  their  pleasure,  was  granted  to  all  subjects.  "  Liceat  unicuique  de 
caetero  exire  de  regno  nostro,  et  redire  salvo  et  secure  per  terram  et 
per  aquam,  salva  fide  nostra,  nisi  tempore  guerrse,  per  aliquod  breve 
tempus,    propter    communem    utilitatem    regni "     (c).       The    period 

(a)  Beames  on  Ne  Exeat,  p.  1 ;  1  Black.  Comm.  137,  266.  Most  of  the  materials, 
which  are  contained  in  this  chapter,  have  been  drawn  from  the  concise  but  perspicuous 
treatise  of  Mr.  Beames,  entitled  "A  Brief  View  of  the  Writ  of  Ne  Exeat  Regno" 
(London,  1812).  I  have  not  omitted,  however,  to  compare  the  observations  of  the 
author  with  the  original  authorities. 

(b)  Beames  on  Ne  Exeat,  p.  1. 

(c)  Ibid.  p.  3. 


§  1464 — 1467.]  NE  EXEAT  REGNO.  621 

between  the  reign  of  King  John  and  that  of  Edward  I.  has  been 
accordingly  assigned  by  some  writers  as  the  probable  time  of  its 
introduction.  A  proceeding  somewhat  similar  in  its  nature  and 
objects,  though  not  in  the  precise  form  of  the  modern  writ,  is 
distinctly  mentioned  by  Britton  (d);  and  the  statute  of  5  Eic.  2,  c.  2, 
ss.  6,  7,  prohibited  all  persons  whatsoever  from  going  abroad, 
excepting  lords  and  great  men,  and  merchants  and  soldiers  (e). 

§  1466.  In  Fitzherbert 's  Natura  Brevium,  two  forms  of  writs  are 
given  against  subjects  leaving  the  realm  without  licence,  the  one 
applicable  to  clergymen,  and  the  other  to  laymen  (/).  And  it  is  there 
remarked  by  Pitzherbert,  that,  by  the  common  law,  every  man  may 
go  out  of  the  realm  at  his  pleasure,  without  the  king's  leave;  yet, 
because  every  man  is  bound  to  defend  the  king  and  his  realm,  there- 
fore the  king,  at  his  pleasure,  by  his- writ,  may  command  a  man,  that 
he  go  not  beyond  the  seas,  or  out  of  the  realm,  without  licence ;  and, 
if  he  do  the  contrary,  he  shall  be  punished  for  disobeying  the  king's 
command.  From  this  language,  it  may  be  inferred,  as  his  opinion, 
that  the  right  of  the  king  was  a  part  of  the  common  law,  not  at  all 
incompatible  with  the  ordinary  right  of  the  subject  to  leave  the  realm ; 
but  a  restriction  upon  that  right,  which  might  be  imposed  by  the 
crovm  for  great  political  purposes.  This  is  manifestly  the  view  of  the 
matter  taken  by  Lord  Coke,  who  deems  it  a  part  of  the  prerogative 
of  fee  crown,  at  the  common  law,  and  not  dependent  upon  any  statute 
fro  bono  publico  regis  et  regni  (g). 

§  1467.  Be  the  origin  of  this  writ,  however,  as  it  may,  it  was 
originally  applied  only  to  great  political  objects  and  purposes  of  state, 
for  the  safety  or  benefit  of  the  realm.  The  time  when  it  was  first 
applied  to  mere  civil  purposes,  in  aid  of  the  administration  of  justice, 
is  not  exactly  known,  and  seems  involved  in  the  like  obscurity  as  its 
primitive  existence.  It  seems,  however,  to  have  been  so  applied  as 
early  as  the  reign  of  Queen  Elizabeth  (h).  In  the  reign  of  King 
James  I.  it  seems  to  have  been  so  firmly  established,  as  a  remedial 
civil  process,  grantable  in  chancery,  that  it  was  made  the  subject  of 
one  of  Lord  Bacon's  Ordinances.  It  is  there  declared,  that  "  Writs  of 
Ne  exeat  regno  are  properly  to  be  granted  according  to  the  suggestion 
of  the  writ  in  respect  of  attempts  prejudicial  to  the  king  and  state; 
in  which  case  the  Lord  Chancellor  will  grant  them,  upon  prayer  of  any 

(d)  Britton,  ch.  112,  cited  in  Beames  on  Ne  Exeat,  pp.  4,  5. 

(e)  Beames  on  Ne  Exeat,  p.  6. 
if)  Fitz.  Nat.  Brev.  85 

(3)  2  Co.  Inst.  54;  3  Co.  Inst.  ch.  84,  pp.  178,  179;  Com.  Dig.  Chancery,  4  B. 

{h)  Tothill,  in  his  Transactions  (p.  136),  mentions  three  cases,  one  in  the  32nd  of 
Elizabeth,  and  two  in  the  19th  of  James  I.  Ex  parte  Brunker,  8  P.  Wma.  312 ;  Plack 
V.  Holm,  1  J.  &  W.  405.  See  also  Beames,  Ord.  of  Chanc.  p.  40,  note  (148);  Beames 
on  Ne  Exeat,  p.  16.  A  copy  of  the  modern  writ  will  be  found  in  Beames  on  Ne  Exeat, 
pp.  19,  20,  and  Hinde's  Practice,  p.  613.  A  similar  process  issued  out  of  the  Exchequer 
in  crown  cases  :  Att.-Gen.  v.  Mucklow,  1  Price,  289. 


622  EQUITY     JURISPRUDENCE.  [CH.    XL. 

of  the  principal  secretaries,  without  cause  showing,  or  Upon  such 
information  as  his  lordship  shall  think  of  weight.  But  otherwise  also 
they  may  be  according  to  the  practice  of  long  time  used,  in  case  of 
interlopers  in  trade,  great  bankrupts,  in  whose  estates  many  subjects 
are  interested,  or  other  cases  that  concern  multitudes  of  the  king's 
subjects;  also  in  case  of  duels  and  divers  others"  (i). 

§  1468.  The  ground,  then,  upon  which  it  is  applied  to  civil  cases 
being,  as  is  here  stated,  custom  or  usage;  it  has  been  in  practice 
uniformly  confined  to  cases  within  the  usage,  and  therefore  it  is 
perhaps  impossible  to  expound  its  true  use  or  limitation  upon 
principle  (k).  It  has  been  strongly  said,  that  it  is  applied  to  cases  of 
private  right  with  great  caution  and  jealousy  (I). 

§  1470.  In  general,  it  may  be  stated,  that  formerly  the  writ  of 
Ne  exeat- regno  was  not  granted  unless  in  cases  of  equitable  debts  and 
claims;  or  if  a  legal  debt,  one  which  was  ascertained  by  evidence 
of  belief,  but  subject  to  the  result  of  taking  an  account;  for,  in  regard 
to  civil  rights,  it  was  treated  as  in  the  nature  of  equitable  bail  (m). 
If  bail  was  not  required  at  law,  that  furnished  no  ground  for  the 
interference  of  a  court  of  equity,  to  do  what  in  eSect,  as  to  legal 
demands,  the  law  inhibited  (n). 

§  1471.  It  has  been  said  in  the  preceding  reinarks,  that,  in  general, 
the  writ  of  Ne  exteat  regno,  l&j  only  upon  equitable  debts  and  claims. 
There  were  to  this  general  statement  two  recognised  exceptions,  and 
two  only.  The  one  was  where  alimony  had  been  decreed  in  the 
Ecclesiastical  Court  to  a  wife,  whose  right  would  be  prejudiced  if  the 
writ  did  not  issue  against  her  husband  about  to  quit  the  realrn, 
the  Ecclesiastical  Courts  having  no  jurisdiction  to  exact  security, 
a  jurisdiction  first  conferred  on  the  Divorce  Court  by  section  32  of  the 
20  &  21  Vict.  c.  85,  from  the  husband  (o).  The  other  was  the  case 
of  an  account,  on  which  a  balance  was  admitted  by  the  defendant, 
but  a  larger  claim  was  insisted  on  by  the  creditor  (p). 

§  1472.  The  learned  author  also  instanced  the  case  of  alimony 
decreed  to  the  wife  in  chancery.  This  subject  has  already  been 
discussed  (q),  and  the  only  occasions  on  which  the  court'  interfered 
were  during  the  Commonwealth,  when' the  court  exercised  jurisdiction 

(t)  Beames,  Ord.  in  Chanc.  pp.  39,  40,  Ord.  89;  Beames  on  Ne  Exeat,  pp.  16, '17. 

(k)  Ex  parte  Brunker,  3  P.  "Will.  313;  Etches  v.  Lance,  7  Ves.  417;  De  Carrihe 
v.  De  Galonne,  4  Ves.  590. 

(Z)  Tomlinson  v.  Harrison,  8  Ves.  32;  Whitehouse  v.  Partridge,  3  Swanst.  365. 

(m)  Beames  on  Ne  Exeat,  p.  30;  Ex  parte  Brunker,  3  P.  'Will.  312;  Atkinson  v. 
Leonard,  3  Bro.  Ch.  C.  218;  Flack  v.  Holm,  1  J.  &W.  405.  See  Goherson  v.  Bloom- 
field,  29  Ch.  D.  341. 

(n)  Grosly  v.  Marriot,  2  Dick.  609 ;  Gardner  v. ,  15  Ves.  444. 

(o)  Vandergucht  v.  De  Blaguiere,  8  Sim.  315 ;  5  M.  &  Cr.  229.  An  appeal  pending 
was  an  answer  to  the  application  for  a  writ  ne  exeat  regno ;  Street  v.  Street,  Turn.  &  E. 
322. 

(p)  Flack  V.  Holm,  1  Jac.  &  W.  405  ;  Thompson  v.  Smith,  34  L.  J.  Ch.  412. 

(g)  Ante,  §  1421. 


§  1468r— 1475a.  ]  ne   exeat    regno.  623 

in  matrimonial  cases,  and  where  the  husband  had  forfeited  his 
recognizances  by  breach  of  condition  to  keep  the  peace  towards  his 
wife,  or  where  the  claim  was  in  the  nature  of  an  equity  to  a  settle- 
ment. These  were  obviously  all  claims  of  an  equitable  nature,  and 
not  true  exceptions.  It  may  well  be  doubted  if  the  jurisdiction 
would  have  been  maintained  in  later  times. 

§  1473.  In  regard  to  a  bill  for  an  account,  where  there  was  a 
definite  sum  proved  or  admitted  to  be  due  by  the  defendant  to  the 
plaintiff,  but  a  larger  sum  was  claimed  by  the  latter,  there  was  not 
any  real  deviation  from  the  appropriate  jurisdiction  of  courts  of 
equity  (r) ;  for  matters  of  account  are  properly  cognizable  therein. 
The  writ  of  Ne  exeat  regno  may,  therefore,  well  be  supported  as  a 
process  in  aid  of  the  concurrent  jurisdiction  of  courts  of  equity,  and, 
accordingly,  it  is  now  put  upon  this  intelligible  and  satisfactory 
ground. 

§  1474.  As  to  the  nature  of  the  equitable  demand,  for  which  a  Ne 
exeat  regno  would  be  issued;  it  must  have  been  certain  in  its  nature, 
and  actually  payable,  and  not  contingent.  It  should  also  have  been 
for  some  debt  or  pecuniary  demand.  It  would  not  lie,  therefore,  in  a 
case  where  the  demand  was  of  a  general  unliquidated  nature,  or  was 
in  the  nature  of  damages  (s).  The  equitable  debt  need  not,  however, 
have  been  directly  created  between  the  parties.  It  would  have  been, 
sufficient  if  it  were  fixed  and  certain.  Thus  the  cestui  que  trust,  or 
assignee  of  a  bond,  might  have  a  writ  of  iVe  exeat  regno  against  the 
obligor  {t). 

§  1475.  We  may  conclude  what  is  thus  briefly  said  upon  this 
subject,  by  stating  that  the  writ  would  not  have  been  granted  on  a 
bill  for  an  account  in  favour  of  a  plaintiff,  who  was  a  foreigner  out  of 
the  realm,  because  he  could  not  be  compelled  to  appear  and  account. 
And,  on  the  other  hand,  it  might  have  been  granted  against  a 
foreigner  transiently  within  the  country,  although  the  subject-matter 
originated  abroad,  at  least  to  the  extent  of  requiring  security  from 
him  to  perform  the  decree  made  on  the  bill  filed  (w). 

§  1475a.  The  power  to  arrest  a  defendant  on  mesne  process  in 
common  law  actions  was  taken  away  by  the  statute  1  &  2  Vict. 
c.  110  in  the  case  of  inferior  courts,  and  modified  in  the  case  of  the 
superior  courts  so  far  as  to  require  a  judge's  order.  The  statute  does 
not  apply  to  actions  at  the'  suit  of  the  crown.  The  power  was  still 
further  restricted  by  section  6  of  the  Debtors  Act,  1869.  Where 
the   debt  amounted  to   £50  or  upwards,   and  could  only  have   been 

(r)  Flack  v.  Holm,  1  Jao.  &  "W.  406 ;  Thompson  v.  Smith,  34  L.  J.  Ch.  412. 
(s)  Sherman  v.  Sherman,  3  Bro.  C.  C.  370,  and  notes;  Flack  v.  Holm,  1  J.  &  W. 
405;  Thompson  v.  Smith,  84  L.  J.  Ch.  412. 

(t)  Grant  v.  Grant,  3  Euss.  598;  Leake  v.  Leake,  1  Jac.  &  "Walk.  605;  Howkins 
V   Howkins,  1  Dr.  &  Sm.  75. 

(«)  Flack  V.  Holm,  1  J.  &  W.  405 ;  Smith  v.  Nethersole,  2  Euss.  &  M,  450. 


624  EQUITY     JUEISPEUDENCE,  [CH.    XL. 

sued  for  in  a  superior  court  of  common  law  prior  to  this  statute,  the 
plaintiff  is  bound  by  the  terms  of  the  sections  (x).  It  is  essential 
for  the  plaintiff  to  show  (a)  that  the  debt  which  must  be  a  legal 
and  not  an  equitable  claim,  amounts  to  £50  or  upwards;  (b)  that 
there  is  reasonable  ground  for  the  belief  that  the  defendant  is  about  to 
quit  the  realm;  and  (c)  that  the  prosecution  of  the  action  will  be 
materially  prejudiced.  Failure  to  prove  any  one  of  these  matters 
is  fatal  to  the  application  (y).  Under  the  section  the  defendant  may 
be  ordered  to  be  imprisoned  for  six  months  unless  he  gives  security 
not  exceeding  the  amount  of  the  debt  that  he  will  not  go  out  of 
England  without  leave  of  the  court.  With  this  exception,  the  statute 
has  abolished  arrest  on  mesne  process.  The  practice  is  regulated  by 
Eules  of  the  Supreme  Court,  1883,  Order  LXIX. 

§  1476.  The  other  process,  to  which  we  have  alluded,  as  belonging 
to  the  exclusive  jurisdiction  of  chancery,  is  the  writ  of  Supplicavit. 
It  was  in  the  nature  of  the  process  at  the  common  law  to  find  sureties 
of  the  peace  upon  articles  filed  by  a  party  for  that  purpose  (»).  It 
was,  however,  rarely  used,  as  the  remedy  at  the  common  law  was  in 
general  adequate,  although  (as  we  have  seen  (a.) ),  it  was  sometimes 
resorted  to  by  a  wife  against  her  husband;  because  in  that  case 
it  was  said,  that  the  Court  of  Chancery,  as  an  incident,  might  grant 
maintenance  or  alimony  to  the  wife,  if  she  was  compelled  to  live 
apart  from  her  husband. 

§  1477.  Lord  Chief  Baron  Gilbert  has  given  a  full  description  of 
the  nature  and  objects  of  this  writ;  and  it  will  be  sufficient  for  all 
the  purposes  of  our  present  inquiry  to  state  them  in  his  words :  "It 
is  granted  upon  complaint  and  oath  made  of  the  party,  where  any 
suitor  of  the  court  is  abused,  and  stands  in  danger  of  his  life,  or  is 
threatened  with  death  by  another  suitor.  The  contemner  is  taJ^en 
into  custody,  and  must  give  bail  to  the  sheriff;  and,  if  he  moves  to 
discharge  the  writ  of  supplicavit,  the  court  hears  both  parties  on 
affidavit,  and  continues  or  discharges  it,  as  the  case  appears  before 
them.     If  they   order  the   contemner  to   give   security   for  his   good 

(a;)  Drover  v.  Beyer,  13  Ch.  D.  242. 

iy)  Drover  \.  Beyer,  13  Ch.  D.  242. 

(z)  See  Baynum  v.  Baynum,  Ambler,  63,  64.  In  Lord  Bacon's  Ordinances  there  is 
one  regulating  the  issuing  of  this  writ.  Ord.  87,  in  Beames's  Ord.  Ch.  p.  89.  On  this 
Mr.  Beames  has  remarked  in  his  note  (144),  "  This  writ,  as  now  issuing,  is  founded 
on  the  statute  21  Jac.  1,  c.  8,  which  must  have  passed  about  five  years  after  the  making 
of  the  present  Ordinances,  if  they  really  were  published  on  the  29th  Jan.  1618,  as 
asserted  in  the  judicial  authority  of  the  Master  of  the  KoUs,  p.  100.  In  addition  to  the 
authorities  cited  in  the  notes  subjoined  to  Heyn's  case,  the  reader  may  be  referred  to 
Stoell  v.  Botelar,  2  Ch.  68  ;  Ex  parte  Gumbleton,  9  Mod.  222 ;  s.o.  2  Atk.  70 ;  Hilton  v. 
Biron,  3  Salk.  248;  Ex  parte  Lewis,  Mos.  191;  Ex  parte  Gibson,  Mos.  198;  Gilb.  For. 
Eom.  202;  Com.  Dig.  Chancery,  4  E.,  and  Forcible  Entry,  D.  16,  17.  The  Collec. 
Juirid.  193,  carries  supplicavits  so  high  as  the  reigns  of  Henry  VII.  and  Henry  VIII. , 
when  both  parties,  plaintiff  and  defendant,  were  bound  over  to  their  good  behaviour." 

(a)  Ante,  §  1421. 


§  147&— 1477.]  NE  EXEAT  KEGNO,  625 

behaviour  (for  this  writ  is  in  the  nature  of  a  Lord  Chief  Justice's 
warrant  to  apprehend  a  man  for  a  breach  of  the  peace),  he  must  do 
it  by  recognizance,  to  be  taken  before  one  of  the  masters  of  the  court, 
who  must  be  in  the  commission  of  the  peace.  He  is  to  find  sureties 
to  be  of  his  good  behaviour.  If  he  beats  or  assaults  the  party  a 
second  time,  the  court  will  order  the  recognizance  to  be  put  in  suit, 
and  permit  the  party  to  recover  the  penalty ;  for  the  recognizance  is 
never  to  be  sued,  but  by  leave  of  the  court.  But  this  proceeding 
very  rarely  or  never  happens.  So,  if  any  ^uitor  of  the  court  is 
arrested,  either  in  the  face  of  the  court  or  out  of  the  court,  as  he  is 
going  and  coming  to  attend  and  follow  his  cause  (for  so  far  the  court 
does  and  will  protect  every  man),  upon  complaint  made  thereof,  sitting 
the  court,  they  will  send  out  the  tipstaff,  and  bring  in  the  bailiffs  and 
prisoner  into  court  instantly,  sitting  the  court,  and  they  will  order 
them  forthwith  to  discharge  him,  or  lay  them  by  the  heels;  and  the 
plaintiff  in  the  action,  upon  complaint  and  oath  made  thereof,  will 
certainly  stand  committed.  He  shall  lie  in  prison  till  he  petitions, 
submits,  and  begs  pardon,  and  pays  the  costs  to  the  other  party  "  (b). 

(b)  Gilbert's  Forum  Eom.  pp.  202,  203;  Clavering's  Case,  2  P.  Will.  202,  and 
Stoell  V.  Botelar,  2  Ch.  68,  are  instances  of  the  actual  granting  of  the  writ,  under  cir- 
cumstances like  those  stated  by  Gilbert  in  his  Forum  Eoman.  pp.  202,  203.  It  was 
usual  to  discharge  persons  committed  for  want  of  surety  on  articles  of  peace,  and  on 
a  suppUcavit,  after  a  year,  if  nothing  new  happened,  and  the  threat  or  danger  did  not 
continue.  Baynum  v.  Baynum,  Ambler,  63;  Ex  parte  Grosvenor,  3  P.  Will.  103. 
Similarly  the  court  of  King's  Bench  restricted  the  period  during  which  the  peace  was 
to  be  observed  according  to  the  necessities  of  the  case.  Bex  v.  Bowes,  1  T.  E.  696; 
Dunn  V.  Reg.,  12  Q.  B.  1026. 


E.J.  40 


626  EQUITY     JURISPRUDENCE.  [CH.    XLI. 


CHAPTER  XLI. 

DISCOVERY,    AND    THE    PRACTICE    EMPLOYED    TO    PRESERVE    AND 
PERPETUATE    EVIDENCE. 

§  1480.  We  shall  now  proceed  to  the  third  and  last  head  of  Equity 
Jurisdiction  proposed  to  be  examined  in  these  Commentaries,  that  is 
to  say,  the  former  auxiliary  or  assistant  jurisdiction,  which,  indeed, 
was  exclusive  in  its  own  nature,  but,  being  applied  in  aid  of  the 
remedial  justice  of  other  courts,  may  well  admit  of  a  distinct 
consideration. 

§  1482.  In  former  times  remedial  processes  of  bills  of  dis- 
covery and  bills  to  take  testimony  de  bene  esse,  pending  a  suit, 
were  the  subject-matter  of  independent  proceedings,  except  in  the 
case  of  equitable  suits,  but  now  form  part  of  the  remedial  justice 
of  all  civil  courts.  The  procedure  is  regulated  by  Eules  of  the 
Supreme  Court,  1883,  Order  XXXI.,  which  are  founded  on  the 
Judicature  Act,  1873,  section  24  (7).  The  principles  regulating  the 
practice  on  bills  of  discovery  still  govern  the  court  in  the  exercise 
of  this  jurisdiction  (a),  and  it  becomes  necessary,  therefore,  to  consider 
the  former.  An  action  for  discovery  only  is  still  maintainable  in  a 
few  cases  of  an  exceptional  nature  (fe).  The  Court  of  Chancery  also 
entertained  bills  to  perpetuate  testimony,  and  an  action  may  now 
be  brought  to  perpetuate  testimony  at  the  suit  of  a  person  who  will 
become  entitled  "  upon  the  happening  of  axiy  future  event,  to  any 
honour,  title,  dignity,  or  office,  or  to  any  estate  or  interest  in  any 
property,  real  or  personal,  the  right  or  claim  to  which  cannot  by  him 
be  brought  to  trial  before  the  happening  of  such  event."  The 
procedure  is  regulated  by  Rules  of  the  Supreme  Court,  1883,  Order 
XXXV.,  rules  35—38. 

§  1488.  In  the  first  place,  as  to  bills  of  discovery.  It  has  been 
already  remarked  that  every  bill  in  equity  might  properly  have  been 
deemed  a  bill  of  discovery,  since  it  sought  a  disclosure  from  the 
defendant,  on  his  oath,  of  the  truth  of  the  circumstances  constituting 

(a)  See  Att.-Gen.  v.  Gaskill,  20  Ch.  D.  519;  Lijell  v.  Kennedy,  8  App.  Cas.  217; 
Roberts  v.  Oppenheim,  26  Ch.  T).  724. 

(b)  On  v.  Diaper,  4  Ch.  D.  92;  Norey  v.  Keep,  [1909]  1  Ch.  561;  Davies  v.  Gas 
Light  S  Coke  Co.,  [1909]  1  Ch.  708.  See  Burstall  v.  Beyjus,  26  Ch.  D.  35;  Kerr  v, 
Rew,  5  M.  &  Cr.  154. 


§  1480—1486.]  DISCOVERY.  627 

the  plaintiff's  case  as  propounded  in  his  bill.  But  that  which  was 
emphatically  called  in  equity  proceedings  a  bill  of  discovery,  was  a 
bill  which  asked  no  relief,  but  which  simply  sought  the  discovery  of 
facts,  resting  in  the  knowledge  of  the  defendant,  or  the  discovery  of 
deeds,  or  writings,  or  other  things,  in  the  possession  or  power  of  the 
defendant,  in  order  to  maintain  the  right  or  title  of  the  party  asking 
it,  in  some  suit  or  proceeding  in  another  court.  The  sole  object 
of  such  a  bill,  then,  being  a  particular  discovery,  when  that  discovery 
was  obtained  by  the  answer,  there  could  be  no  further  proceedings 
thereon  (d).  To  maintain  a  bill  of  discovery  it  was  not  necessary  that 
the  party  should  otherwise  have  been  without  any  proof  of  his  case ; 
for  he  might  maintain  such  a  bill,  either  because  he  had  no  proof,  or 
because  he  wanted  it  in  aid  of  other  proof  (e).  But,  in  general,  it  was 
necessary,  in  order  to  maintain  a  bill  of  discovery,  that  an  action 
should  be  already  commenced  in  another  court,  to  which  it  should  be 
auxiliary.  Both  under  the  old  and  the  new  practice,  discovery  in  aid 
of  proceedings  out  of  the  jurisdiction  will  be  refused  (/). 

§  1484.  One  of  the  defects  in  the  administration  of  justice  in  the 
courts  of  common  law  arose  from  their  want  of  power  to  compel  a 
complete  discovery  of  the  material  facts  in  controversy  by  the  oaths 
of  the  parties  in  the  suit  (g).  And  hence  (as  we  have  seen),  one  of  the 
most  important  and  extensive  sources  of  the  jurisdiction  of  courts  of 
equity  was  their  power  to  compel  the  parties,  upon  proper  proceed- 
ings, to  make  every  such  discovery. 

§  1485.  Another  defect  of  a  similar  nature  was  the  want  of  a 
power  in  the  courts  of  common  law  to  compel  the  production  of  deeds, 
books,  writings,  and  other  things,  which  were  in  the  custody  or  power 
of  one  of  the  parties,  and  were  material  to  the  right,  title,  or  defence 
of  the  other  (h).  This  defect  also  was  remediable  in  courts  of  equity, 
which  would  compel  the  production  of  such  books,  deeds,  writings, 
and  other  things. 

§  1486.  The  Eoman  law  provided  similar  means,  by  the  oath  of 
the  parties  and  by  a  bill  of  discovery,  to  obtain  due  proofs  of  the 
material  facts  in  controversy  between  the  parties.  There  seem 
originally  to  have  been  three  modes  adopted  for  this  purpose.  One 
was  upon  a  due  act  of  summons  to  require  the  party,  without  oath, 
to  make  a  statement,  or  confession  generally,  relative  to  a  matter  in 
controversy.  Another  was  to  require  him  to  answer  before  the  proper 
judge  to  certain  interrogatories,   propounded  in  the  form  of  distinct 

(d)  Lady  Shaftesbury  v.  Arrowsmith,  4,  Ves.  71. 

(e)  Pinch  v.  Finch,  2  Ves.  Sen.  492;  Montague  v.  Dudman,  2  Ves.  Sen.  398. 

(/)  Finch  V.  Angell,  9  Sim.  180;  Reiner  v.  Marquis  of  Salisbury,  2  Ch.  D.  378; 
Dreyfus  v.  Peruvian  Guano  Co.,  41  Ch.  D.  151. 

(g)  3  Black.  Comm.  381,  382. 

(h)  2  Black.  Comm.  382;  Com.  Dig.  Chancery,  3  B.  See  Att.-Gen.  ^.  Gaskill,  20 
Ch.  D.  519. 


628  EQUITY     JURISPRUDENCE.  [CH.    XLI. 

articles,  which  the  judge  might,  in  his  disoretipn,.  order  him  to  answer 
upon  oath.  The  third  was,  to  require  the  adverse  party  to  answer 
upon  oath,  as  to  the  fact  in  controversy;  the  party  applying  for  the 
answer  consenting  to  take  the  answer  so  given  upon  oath  as  truth. 
On  this  account  it  was  called  the  decisive  or  decisory  oath ;  and  it 
admitted  of  no  countervailing  and  contradictory  evidence.  In  the 
two  former  cases  other  proofs  were  admissible  (i).  "  Ubicunque 
judicem  aequitas  moverit,  eeque  oportere  fieri  interrogationem,  dubium 
non  est  (k).  Voluit  Praetor  adstringere  eum,  qui  convenitur,  ex  sua  in 
judicio  responsione,  ut  vel  confitendo,  vel  mentiendo,  sese  oneret"  (l). 

§  1487,  In  the  Eoman  law  bills  of  discovery  were  called  Actiones 
ad  exhibendum,  when  they  related  to  the  production  of  things,  or 
deeds,  or  documents,  in  which  another  person  had  aji  interest  (m). 
When  they  required  the  answer  of  the  party  on  oath  to  interrogatories, 
they  were  called  Actiones  interrogatorise  (n).  It  seems  that,  originally, 
interrogatory  actions  might  be  propounded  at  any  time  before  suit 
brought  by  any  party  having  any  interest.  But  we  are  informed  in 
the  Digest,  that,  in  the  time  of  Justinian,  they  had  become  obsolete, 
and  interrogatories  were  propounded  only  in  cases  in  htigation. 
"  Interrogatoriis  autem  actionibus  hodi©  non  utimur,  quia  nemo 
cogitur  ante  judicium  de  suo  jure  aliquod  respondere.  Ideoque  minus 
frequentantur,  et  in  desuetudinem  abierunt.  Sed  tantummodo,  ad 
probationes  litigatoribus  sufificiunt  ea,  quae  ab  adversa  parte  expressa 
fuerint  apud  judices,  vel  in  hereditatibus,  vel  in  aliis  rebus,  quae  in 
causis  vertuntur  "  (o).  The  Eoman  law  also  required  that  the  party 
seeking  a  discovery  of  facts  should  have  a  legal  capacity  to  sustain 
himself  in  court;  and  that  the  discovery  should  respect  some  right 
of  action  (p).  It  does  not  seem  important  further  to  trace  out  the 
analogies  of  the  Eoman  law  on  this  subject;  and,  with  these  brief 
hints,  showing  the  probable  origin  of  the  like  proceedings  in  our 
courts  of  equity,  we  may  return  to  the  subject  of  bills  of  discovery. 

§  1488.  As  the  object  of  this  jurisdiction,  in  cases  of  bills  of  dis- 
covery, was  to  assist  and  promote  the  administration  of  public  justice 
in  other  courts,  they  were  greatly  favoured  in  equity,  and  would  be 
sustained  in  all  cases  where  some  well-founded  objection  did  not  exist 
against  the  exercise  of  the  jurisdiction.  We  shall,  therefore,  proceed 
to  the  consideration  of  some  of  the  circumstances  which  may  consti- 
tute an  objection  to  such  bills,  leaving  the  reader  silently  to  draw  the 
conclusion,  that,  if  none  of  these,  nor  any  of  the  Uke  nature,  inter- 
vene,   the   jurisdiction   to   compel   the  discovery   sought   would   have 

(i)  2  Domat,  B.  1,  tit.  6,  §  5,  pp.  458,  459;  id.  §  5,  art.  4,  5. 

{k)  Dig.  Lib.  11,  tit.  1,  f.  21. 

(0  Ibid.  f.  4. 

(to)  Pothier,  Pand.  Lib.  10,  tit.  4,  n.  1  to  7 ;  id.  n.  8  to  30. 

(n)  Ibid.  Lib.  11,  tit.  1,  n.  1  to  24,  and  note  (2). 

(0)  Ibid.  Lib.  11,  n.  24;  Dig.  Lib.  11,  tit.  1,  f.  1,  §  1. 

(p)  Pothier,  Pand.  Lib.  11,  tit.  1,  n.  13,  15. 


§   1487—14890..]  DISCOVERY.  629 

been  strictly  enforced  by  the  Court  of  Chamcery,  and  will  now  be 
strictly  enforced  in  all  the  Divisions  of  the  High  Court  of  Justice. 

§  1489.  The  principal  grounds  upon  which  a  bill  of  discovery 
might  have  been  resisted,  have  been  enumerated  by  a  learned  writer, 
as  follows :  (1)  That  the  subject  was  not  cognizable  in  any  municipal 
court  of  justice.  (2)  That  the  court  would  not  lend  its  aid  to  obtain 
a  discovery  for  the  particular  court  for  which  it  was  wanted.  (3)  That 
the  plaintiff  was  not  entitled  to  the  discovery  by  reason  of  some 
personal  disability.  (4)  That  the  plaintiff  had  no  title  to  the  character 
in  which  he  sued.  (5)  That  the  value  of  the  suit  was  beneath  the 
dignity  of  the  court.  (6)  That  the  plaintiff  had  no  interest  in  the 
subject-matter,  or  title  to  the  discovery  required,  or  that  an  action 
would  not  lie  for  which  it  was  wanted.  (7)  That  the  defendant  was 
not  answerable  to  the  plaintiff,  but  that  some  other  person  had  a 
right  to  call  for  the  discovery.  (8)  That  the  policy  of  the  law 
exempted  the  defendant  from  the  discovery.  (9)  That  the  defendant 
was  not  bound  to  discover  his  own  title.  (10)  That  the  discovery 
was  not  material  in  the  suit.  (11)  That  the  defendant  was  a  mere 
witness.  (12)  That  the  discovery  called  for  would  criminate  the 
defendant.  Some  of  these  grounds  of  objection  to  discovery  have 
ceased  to  be  of  force  since  the  Judicature  Acts,  but  some  still 
operate,  and  it  will  be  therefore  proper  to  unfold  the  principles,  with 
more  particularity,  by  which  a  few  of  them  are  governed.  Under  the 
present  practice  it  would  seem  that  there  are  only  four  grounds  on 
which  discovery  is  refused  when  the  discovery  is  sought  in  the  pro- 
ceedings in  aid  of  which  the  discovery  is  required,  viz.,  (a)  that  it  is 
criminatory  or  penal,  (b)  that  it  is  under  the  doctrine  of  legal 
professional  privilege,  (c)  that  it  discloses  the  party's  evidence,  (d)  that 
it  is  injurious  to.  public  interests  (q). 

§  1489a.  There  is  a  point  of  practice  which  has  an  important 
bearing  upon  the  question  of  discovery.  If  the  discovery  were  sought 
in  aid  of  proceedings  in  another  court,  or  being  a  matter  over  which 
the  Court  of  Chancery  had  jurisdiction,  proceedings  were  in  fact 
being  maintained  in  another  court,  the  right  to  discovery  had  to  be 
judged  on  its  own  merits  (r).  In  matters  of  equity  jurisdiction,  where 
the  right  to  discovery  was  incidental  to  other  relief,  the  right  to 
discovery  was  entirely  dependent  upon  the  right  to  maintain  the 
action  for  the  principal  relief  (s).  Actions  limited  to  discovery  can 
now  only  arise  in   exceptional  cases,   and  the  same  principle  would 

(g)  Objections  (a)  (d)  are  not  applicable  under  the  present  practice  except  where 
an  action  (or  bill,  according  to  the  old  chancery  practice)  is  brought  for  discovery  in 
aid  of  some  other  proceeding  which  "  now  can  be  of  rare  occurrence  "  :  per  His  Honour 
Judge  Bray,  in  a  private  communication  to  the  late  Mr.  Grigsby.  See  Bray  on 
Discovery,  pp.  609  to  619. 

(r)  Mills  V.  Campbell,.2Y.  &  C.  Ex.  391. 

(s)  Mellish  v.  Richardson,  12  Price,  S30. 


630  EQUITY     JURISPRUDENCE.  [CH.    XLI. 

apply  (<).  In  the  vast  majority  of  instances  the  right  to  discovery 
will  be  incidental  to  other  relief,  and  unless  the  party  can  show  that 
the  action  is  not  maintainable,  he  will  be  precluded  from  raising 
many  objections  to  discovery  that  were  formerly  available  to  him  (m). 

§  1490.  In  the  first  place,  it  must  clearly  appear  that  the  plaintiff 
has  a  title  to  the  discovery  which  he  seeks;  or,  in  other  words,  that 
he  has  an  interest  in  the  subject-matter,  to  which  the  discovery  is 
attached,  capable  and  proper  to  be  vindicated  in  some  judicial 
tribunal.  A  mere  stranger  cannot  seek  for  the  discovery  of  the  title 
of  another  person.  Hence,  an  heir-at-law  caimot,  during  the  life  of 
his  ancestor,  have  a  discovery  of  facts  or  deeds,  material  to  the 
ancestor's  estate ;  for  he  has  no  present  title  whatsoever,  but  only  the 
possibility  of  a  future  title  (x). 

§  1491.  Even  an  heir-at-law  has  not  a  right  to  the  inspection  of 
deeds  in  the  possession  of  a  devisee;  but  an  heir-in-tail  is  entitled 
to  see  the  deeds  creating  the  estate  tail,  but  no  further  (y).  On  the 
other  hand,  a  devisee  is  entitled  against  the  heir-at-law  to  a  discovery 
of  deeds  relating  to  the  estate  devised  (a). 

§  1492.  The  reason  of  this  distinction  is  fairly  obvious.  The  title 
of  an  heir-at-law  is  a  plain  legal  title,  and  a  paramount  title ;  for 
he  succeeds  to  all  fee  simple  lands  of  his  ancestor  that  are  not 
effectively  devised  to  another  (a).  After  the  death  of  the  ancestor 
different  considerations  prevail.  Every  freehold  tenant  in  possession, 
even  a  tenant  for  life  (b),  where  the  interest  is  legal,  is  entitled  to  the 
title-deeds  in  right  of  his  estat-e  (c),  and  where  the  deeds  relate  to 
other  lands  in  which  he  is  not  interested  under  a  common  title,  to 

(t)  Burstall  v.  Bey f us,  26  Ch.  D.  35. 

(«)  See  Ind  Coope  S  Co.  v.  Emmerson,  12  App.  Cas.  300. 

(x)  Buden  v.  Dore,  2  Ves.  Sen.  445.  V.C.  Wigram,  in  his  treatise  on  the  Ltaw  of 
Discovery,  lays  down  the  following  as  fundamental  propositions  on  this  subject,  ^i) 
It  is  the  right,  as  a  general  rule,  of  the  plaintiff  in  equity,  to  examine  the  defendant 
upon  oath,  as  to  all  matters  of  fact,  which,  being  well  pleaded  in  the  bill,  are  material 
to  the  proof  of  the  plaintiff's  case,  and  which  the  defendant  does  not,  by  his  form  of 
pleading,  admit.  (2)  Courts  of  equity,  as  a  general  rule,  oblige  a  defendant  to  pledge 
his  oath  to  the  tnith  of  his  defence;  with  this  (if  a)  qualification,  the  right  of  a  plaintiff 
in  equity,  to  the  benefit  of  the  defendant's  oath,  is  limited  to  a  discovery  of  such 
material  facts  as  relate  to  the  plaintiff's  case;  and  it  does  not  extend  to  the  discovery 
of  the  manner  in  which,  or  of  the  evidence  by  means  of  M'hich,  the  defendant's  case  is 
to  be  established,  or  to  any  discovery  of  the  defendant's  evidence.  Wigram,  Points  m 
Law  of  Discovery,  pp.  21,  22;  Story  on  Bq.  Plead.  §  872  to  574. 

iy)  Lady  Shaftesbury  v.  Arrowsmith,  i  Ves.  71.  In  this  case  Lord  Eosslyn  ex- 
plained the  ground  of  the  doctrine  in  favour  of  the  heir-in-tail ;  that  it  was  removing 
an  impediment  which  prevented  the  trial  of  a  legal  right.  He  afterwards  added  :  "  Per- 
mitting a  general  sweeping  survey  into  all  the  deeds  of  the  family  would  be  attended 
with  very  great  danger  and  mischief;  and  where  the  person  claims  as  heir  of  the  body, 
it  has  been  very  properly  stated,  that  it  may  show  a  title  in  another  person,  if  the 
entail  is  not  well  barred." 

(z)  Lady  Shaftesbury  v.  Arrowsmith ,  4  Ves.  71. 

(a)  Shuldham  v.  Smith,  6  Dow,  22;  Asten  v.  Asten,  [1894]  3  Ch.  260. 

(b)  Leathes  v.  Leathes,  5  Ch.  D.  221. 

(c)  Smith  v.  Chichester,  2  Du.  &  War.  393. 


§  1490—1496.]  DISCOVERY.  631 

have  those  deeds  produced  to  evidence  his  title  (d).  These  principles 
are  further  illustrated  by  the  cases  which  decide  that  a  tenant  in 
remainder  of  a  freehold  interest  may  obtain  production  against  the 
tenant  for  Ufe  (e),  unless  the  estate  in  remainder  is  still  contingent  (/). 
Two  matters  must  be  distinguished.  A  party  claiming  an  interest 
in  an  estate  is  entitled  to  a  discovery  of  what  documents  are  in  the 
hands  or  under  the  control  of  another,  and  of  all  facts  relevant  to 
his  own  case,  but  he  is  not  entitled  to  pry  into  the  title  of  his 
adversary  (g). 

§  1493.  On  the  other  hand,  a  devisee,  claiming  an  estate  under  a 
will,  cannot,  without  a  discovery  of  the  title-deeds,  maintain  any  suit 
at  law.  The.  heir-at-law  might  not  only  defeat  his  suit,  by  withhold- 
ing the  means  to  trace  out  his  legal  title,  but  might  also  defend 
himself  at  law  by  setting  up  prior  outstanding  incumbrances.  And 
thus  he  might  prevent  the  devisee  from  having  the  power  of  trying 
the  vahdity  of  the  will  at  law  (h). 

§  1494.  In  the  next  place,  the  courts  of  equity  will  not  allow 
discovery  to  aid  the  promotion  or  defence  of  any  suit  which  is  not 
purely  of  a  civil  nature.  Thus,  for  example,  they  will  not  compel  a 
discovery  pending  to  incriminate  a  party  against  whom  it  is  sought  (?), 
or  in  aid  of  a  penal  action  (fe) ;  or  of  an  action  to  enforce  a  forfeiture  (I), 
for  it  is  against  the  genius  of  the  common  law  to  compel  a  party  to 
accuse  himself;  and  it  is  against  the  general  principles  of  equity  to 
aid  in  the  enforcement  of  penalties  or  forfeitures.  It  has  been 
held  generally  that  Ord.  31,  r.  1,  of  the  Eules  of  the  Supreme  Court, 
1883,  was  not  intended  to  give  the  right  to  discovery  in  cases  where, 
prior  to  the  Judicature  Acts,  discovery  was  not  obtainable  (m). 

§  1496.  In  the  next  place,  no  discovery  will  be  compelled,  where 
it  is  against  the  policy  of  the  law  from  the  particular  relation  of 
the  parties.  Thus,  for  instance,  a  person  standing  in  the  relation 
of  professional  confidence  to  another,  as  his  counsel  or  attorney,  will 
not  be  compelled  to  disclose  the  secrets  of  his  client,  unless  the 
privilege  is  waived  by  the  client  (w).  It  is  strictly  confined  to  legal 
advisers,  whatever  their  nationality  may  be  (o).     But  as  was  pointed 

(d)  Ruscoe  V.  Richards,  1  Jur.  304. 

(e)  Davis  v.  Earl  of  Dysart,  20  Beav.  405. 
(/)  Noel  V.  Ward,  1  Mad.  322. 

(g)  Lyell  v.  Kennedy,  8  App.  Cas.  217.  This  case  will  give  a  clue  to  the  earlier 
cases. 

(h)  Duchess  of  Newcastle  v.  Lord  Pelham,  3  Bro.  P.  C.  460. 

(t)  Cartwright  v.  Green,  8  Ves.  405 ;  Redfem  v.  Redfern,  [1891]  P.  189. 

(k)  Runnings  v.  Williamson,  10  Q.  B.  D.  459. 

(0  Earl  of  Mexborough  v.  Whitwood  Urban  Council,  [1897]  2  Q.  B.  Ill 

(m)  Runnings  v.  Williamson,  10  Q.  B.  D.  459;  Lyell  v.  Kennedy,  8  App.  Cas.  217. 

(m)  Parkhurst  v.  Lowten,  2  Swanst.  194,  and  the  cases  in  notes;  Wentworth  v. 
Lloyd,  10  H.  L.  C.  589. 

(o)  Bunbury  v.  Bunbury,  2  Beav.  173;  Lawrence  v.  Campbell,  i  Drew.  485; 
Wheeler  v.  Le  Marchant,  17  Oh.  D.  675. 


632  EQUITY     .TURISPRUDENCE.  [CH.    XLI. 

out  by  Sir  George  Jessel,  M.E.  (p) ;  "The  protection  is  of  a  very 
limited  character,  and  is  restricted,  in  this  country,  to  obtaining  the 
assistance  of  lawyers  as  regards  the  conduct  of  litigation  or  the  rights 
to  property.  It  has  never  gone  beyond  the  obtaining  legal  advice 
and  assistance,  and  all  things  reasonably  necessary  in  the  case  of 
communication  to  the  legal  advisers  are  protected  from  production 
or  discovery  in  order  that  the  legal  advice  may  be  obtained  safely 
and  effectually."  Accordingly  a  solicitor  must  depose  to  a  fact  not 
confidentially  communicated  to  him  as  the  execution  of  a  deed,  or 
matters  which  come  to  his  knowledge  independently  of  his  character 
as  solicitor  to  a  party  in  a  particular  matter  (g).  Fraud  or  criminal 
conduct  displaces  the  privilege,  "  for  the  rule  does  not  apply  to  all 
that  passes  between  a  client  and  his  solicitor,  but  only  to  what  passes 
between  them  in  professional  confidence;  and  no  court  can  permit  it 
to  be  said  that  the  contriving  of  a  fraud,  can  form  part  of  the 
professional  occupation  of  an  attorney  or  solicitor  "  (r).  The  privilege 
extends  to  persons  necessarily  employed  by  the  solicitor  to  form  a 
just  conclusion  (s),  as  an  interpreter  to  render  communication 
between  the  client  and  his  solicitor  possible  (t).  But  it  does  not 
extend  to  any  other  category  of  agent  immediately  consulted  as  a 
pursuivant  of  the  Heralds'  College  (u),  or  a  patent  agent  (a;),  or  any 
other  persons  in  a  confidential  relationship,  as  for  instance,  a  medical 
man  or  clergyman  {y). 

§  1497.  In  the  next  place,  no  discovery  will  be  compelled,  except 
of  facts  material  to  the  case  stated  by  the  plaintifi  (z);  for  otherwise, 
he  might  insist  upon  a  knowledge  of  facts  wholly  impertinent  to  his 
case,  and  thus  compel  disclosures  in  which  he  had  no  interest,  to 
gratify  his  malice,  or  his  curiosity,  or  his  spirit  of  oppression.  But 
cases  of  immateriality  may  be  put  faj  short  of  such  unworthy  objects. 
Thus,  if  a  mortgagor  should  seek  to  ascertain  whether  the  mortgagee 
was  a  trustee  or  not,  that  would,  ordinarily,  be  deemed  an  improper 
inquiry,  since,  unless  special  circumstances  were  shown,  it  could  not 
be  material  to  the  plaintiff,  whether  any  trust  were  reposed  in  the 
mortgagee  or  not  (a).     And  document*  are  material  to  the  case  if  it  is 

(p)  Wheeler  v.  Le  Marchant,  17  Ch.  D.  675. 

(g)  Sanford  v.  Remington,  2  Vea.  Jun.  189;  Colmon  v.  Orton,  9  L.  J.  Ch.  268; 
Dwyer  v.  Collins,  7  Ex.  639;  In  re  Arnott,  37  W.  B.  223. 

(r)  Lord  Cranworth,  V.C,  Follet  v.  Jejferys,  1  Sim.  N.  S.  1,  17;  Reg.  v.  Cox,  14 
Q.  B.  D.  153;  Williams  v.  Quebrada  Railway,  Land  and  Copper  Co.,  [1896]  2  Ch.  751. 

(s)  Wheeler  v.  Le  Marchant,  17  Ch.  D.  6'i0;  Learoyd  v.  Halifax  Banking  Co. 
[1893]  1  Ch.  686. 

(t)  Du  Barre  v.  Livette,  1  Peake,  108.  The  actual  ruling  is  inconsistent  with  Reg 
V.  Cox,  14  Q.  B.  D.  153. 

(u)  Slade  v.  Tucker,  14  Ch.  D.  827. 

(x)  Moseley  v.  Victoria  Co.,  55  L.  T.  482. 

iy)  Russell  v.  Jackson,  9  Hare,  392. 

(z)  See  Finch  v.  Finch,  2  Ves.  Sen.  492. 

(o)  Montague  v.  Dudman,  2  Ves.  Sen.  399. 


§  1497—1504.]  DISCOVERY.  633 

not  unreasonable  to  suppose  that  they  may  contain  information 
directly  or  indirectly  enabling  the  party  seeking  discovery  either  to 
advance  his  own  case,  or  to  damage  the  case  of  his  adversary  (b). 

§  1498.  Formerly  arbitrators  were  not  compellable  to  disclose  the 
grounds  on  which  they  made  their  award;  nor  could  they  be 
impleaded  unless  they  were  charged  with  corruption,  fraud,  or 
partiality  (c).  There  is  now  power  to  compel  an  arbitrator  to  state 
a  case  for  the  opinion  of  the  court  upon  a  question  of  law  (d).  On  a 
question  of  fact  the  decision  of  the  arbitrator  is  conclusive. 

§  1499.  In  the  next  place,  it  is  ordinarily  a  good  objection  to  a 
discovery,  that  it  seeks  the  discovery  from  a  defendant  who  is  a 
mere  witness,  and  has  no  interest  in  the  suit;  for,  as  he  may  be 
examined  in  the'  suit  as  a  witness,  there  is  no  ground  to  msike  him 
a  party  to  discovery,  since  his  answer  would  not  be  evidence  against 
any  other  person  in  the  suit  (e). 

§  1501.  Formerly  officers  of  a,  corporation,  or  other  members  of 
the  corporation,  could  be  made  parties  to  assist  discovery  against  the 
corporation.  Under  the  present  practice  an  order  to  answer  interro- 
gatories is  made  upon  any  member  or  officer  of  the  corporation  (/), 
in  the  case  of  ordinary  disclosure  and  production  of  documents. 
The  order  is  made  upon  an  officer  of  the  corporation,  and  it  is 
improper  to  make  the  officer  a  party  for  that  purpose  (g). 

§  1502.  In  the  next  place,  a  defendant  might  have  objected  to  a 
discovery,  that  he  was  a  bond  fide  purchaser  of  the  property  for  a 
valuable  consideration,  without  notice  of  the  plaintiff's  claim.  To 
entitle  himself  to  this  protection,  however,  the  purchase  must  not 
only  be  bond  fide,  and  without  notice,  and  for  a  valuable  consideration, 
but  the  purchaser  must  have  paid  the  purchase-money  {h).  This 
exception  has  now  become  unimportant,  as  discovery  is  an  incident 
to  all  actions  in  the  High  Court  (?'). 

§  1504.  Upon  the  same  principle,  a  jointress  is  entitled  to  protect 
herself  against  the  discovery  of  her  jointure  deed,  if  the  party  seeking 
the  discovery  is  not  capable  of  confirming  the  jointure,  or  if,  being 
capable,  he  does  not  offer  by  his  bill  to  confirm  it,  when  the  discovery 
will  be  granted,  as  soon  as  the  confirmation  is  made,  but  not  before. 

(b)  Compagnie  FinancUre  et  Commerciale  du  Pacifique  v  Peruvian  Guano  Co.,  11 
Q.  B.  D.  55. 

(c)  Ives  V.  Metcalfe,  1  Atk.  63;  Tittenson  v.  Peat,  3  Atk.  529;  Anon.,  3  Atk.  644. 

(d)  Arbitration  Act,  1889  (52  &  53  Vict.  c.  49),  «.  19. 

(e)  Fenton  v.  Hughes,  7  Ves.  287 ;  Burstall  v.  Beyfus,  26  Ch.  D.  35. 

(/)  Eules  of  the  Supreme  Court,  1883,  Order  XXXI.,  rule  5;  Southwark  Water  Co. 
v.  Quick,  3  Q.  B.  D.  315;  Welsbach  Incandescent  Gaslight  Co.  v.  New  Sunlight  In- 
candesoent  Co.,  [1900]  2  Ch.  1. 

(^)  •  Wilson  v.  Church,  9  Ch.  D.  662 

(h)  Butler's  note  to  Co.  Litt.  290  b,  note  (1),  §  13;  Willoughby  v.  Willoughby, 
1  T.E.  763 ;  Jackson  v.  Rome,  4  Buss.  514;  9  L.  J.  0.  S.  Ch.  32. 

(i)  Ind  Coope  S  Co.  v.  Emmerson ,' 12  App.  Gas.  300. 


634  EQUITY     JURISPRUDENCE.  [CH.    XLI. 

For  otherwise,   it  might  happen,   that,   after  the  discovery,   his  offer 
might  become  ineffectual  by  the  intervention  of  other  interests  {k). 

§  1504a-.  It  was  for  a  long  time  considered  to  be  the  rule  that  a 
plaintiff  in  ejectment  at  law  was  not  entitled  to  bring  a  bill  in  equity 
for  discovery,  on  the  maxim  that  a  plaintiff  in  ejectment  must 
succeed  by  the  strength  of  his  own  title  and  not  by  the  wealcness 
of  his  adversary.  But  in  the  late  case  of  Lyell  v.  Kennedy  (l),  it  was 
decided  by  the  House  of  Lords,  overruling  the  unanimous  judgment 
of  the  Court  of  Appeal,  that  the  ordinary  rule  as  to  discovery  applies 
as  much  to  an  action  for  the  recovery  of  land  as  to  all  other 
actions — i.e.,  that  a  plaintiff  is  entitled  to  discover^'  as  to  all  matters 
relevant  to  his  own,  and  not  to  the  defendant's  case.  It  should  be 
remarked  that  the  decision  did  not  proceed  on  the  principle  that  the 
right  of  discovery  under  the  present  rules  of  the  Supreme  Court, 
is  more  extensive  than  it  was  in  the  Court  of  Chancery,  but  on  the 
authority  of  decided  cases,  which  were  not  quoted  in  the  Court  of 
Appeal,  and  also  that  of  the  leading  writers  on  the  Law  of  Dis- 
covery (m).  At  the  same  time  the  House  recognized  the  validity 
of  the  rule  that  a  defendant  in  possession  of  land  cannot  be  required 
to  disclose  his  title,  but  only  the  nature  of  his  title  (n) ;  e.g.,  whether 
he  claims  as  heir,  or  devisee,  or  a  disseisor  in  whose  favour  the  statute 
of  limitations  has  run. 

§  1505.  Let  us  now  pass  to  the  consideration  of  the  methods  to 
preserve  and  perpetuate  testimony  when  it  is  in  danger  of  being  lost 
before  the  matter  to  which  it  relates  can  be  made  the  subject  of 
judicial  investigation  (o).  Before  the  Judicature  Act  this  was  done  by 
means  of  a  bill  brought  in  the  Court  of  Chancei-y,  and  the  following 
sections  give  the  old  practice.  Bills  of  this  sort  are  obviously  indis- 
pensable for  the  purposes  of  public  justice,  as  it  may  be  utterly  im- 
possible for  a  party  to  bring  his  rights  presently  to  a  judicial  decision; 
and  unless,  in  the  intei-mediate  time,  he  may  perpetuate  the  proofs 
of  those  rights,  they  may  be  lost  without  any  default  on  his  side. 
The  civil  law  adopted  similar  means  of  preserving  testimony  which 
was  in  danger  of  being  lost  (p). 

§  1506.  This  sort  of  bill  (as  has  been  remarked  by  j\Ir.  Justice 
Blackstone)  "  is  most  frequent,  when  lands  are  devised  by  will,  away 
from  the  heir-at-law;  and  the  devisee,  in  order  to  perpetuate  the 
testimony  of  the  witnesses  to  such  will,  exhibits  a  bill  in  chancery 

(k)  Leech  v.  Trollop,  2  Ves.  Sen.  662. 

(0  8  App.  Cas.  217. 

(m)  Hare  on  Discovery,  p.  198;  Sir  James  Wigram  on  Discovery,  2nd  edit., 
pp.  14  and  122. 

()i)  Bellwood  V.  Wetherell,  1  Y.  &  C.  Ex.  211 ;  Hortoti  v.  Bott,  2  H.  &  N.  249. 

(o)  Ellice  V.  Roupell,  32  Beav.  308,  and  note.  Such  procedure  is  now  styled  an 
action  in  the  nature  of  a  bill  to  perpetuate  testimony. 

(p)  Domat,  B.  3,  tit.  6,  §  3;  Dig.  Lib.  9,  tit.  2,  f.  40;  Gilb.  For.  Eoman.  ch.  7, 
pp.  118,  119;  Mason  v.  Goudburne,  Rep.  t.  Pinch,  391. 


§  15040^1508.]  DISCOVERY.  635 

against  the  heir,  and  sets  forth  the  will  verbatim  therein,  suggesting, 
that  the  heir  is  inclined  to  dispute  its  validity;  and  then,  the  de- 
fendant having  answered,  they  proceed  to  issue,  as  in  other  cases,  and 
examine  the  witnesses  to  the  will;  after  which  the  cause  is  at  an  end 
without  proceeding  to  any  decree,  no  relief  being  prayed  by  the  bill; 
but  the  heir  is  entitled  to  his  costs,  even  though  he  contests  the  will. 
This  is  what  is  usually  meant  by  proving  a  will  in  chancery  "  (g). 
This  practice  is  substantially  embodied  in  the  rules  of  the  Supreme 
Court,  1883,  Order  XXXVII.,  rules  85  to  38. 

§  1507.  The  jurisdiction,  which  courts  of  equity  exercise  to  per- 
petuate testimony,  has  been  thought  to  be  open  to  great  objections, 
although  it  seems  indispensable  for  the  purposes  of  public  justice. 
First :  it  leads  to  a  trial  on  written  depositions,  which  is  deemed  to  be 
much  less  favourable  to  the  cause  of  truth  than  the  viva  voce 
examination  of  witnesses.  But,  what  is.  still  more  important,  inas- 
much as  those  depositions  can  never  be  used  until  after  the  death  of 
the  witnesses,  and  are  not,  indeed,  published  until  after  their  death, 
it  follows,  that,  whatever  may  have  been  the  perjury  committed  in 
those  depositions,  it  must  necessarily  go  unpunished.  The  testimony, 
therefore,  has  this  infirmity,  that  it  is  not  given  under  the  sanction 
of  those  penalties  which  the  general  policy  of  the  law  imposes  upon 
the  crime  of  perjury.  It  is  for  these  reasons  that  courts  of  equity  do 
not  generally  entertain  bills  to  perpetuate  testimony,  for  the  purpose 
of  being  used  upon  a  future  occasion,  unless  where  it  is  absolutely 
necessary  to  prevent  a  failure  of  justice. 

§  1508.  If,  therefore,  it  be  possible,  that  the  matter  in  controversy 
can  be  made  the  subject  of  immediate  judicial  investigation  by  the 
party  who  seeks  to  perpetuate  testimony,  courts  of  equity  will  not 
entertain  any  bill  for  the  purpose.  For  the  party,  under  such  circum- 
stances, has  it  fully  in  his  power  to  terminate  the  controversy  by 
commencing  the  proper  action;  and,  therefore,  there  is  no  reasonable 
ground  to  give  the  advantage  of  deferring  his  proceedings  to  a  future 
time,  and  to  substitute  thereby  written  depositions  for  viva  voce 
evidence.  But,  on  the  other  hand,  if  the  party  who  files  the  bill  can 
by  no  means  bring  the  matter  in  controversy  into  immediate  judicial 
investigation,  which  may  happen  when  his  title  is  in  remainder,  or 
when  he  himself  is  in  actual  possession  of  the  property,  or  when 
he  is  in  the  present  possession  of  the  rights  which  he  seeks 
to  perpetuate  by  proofs;  in  every  such  case,  courts  of  equity  will 
entertain  a  suit  to  secure  such  proofs.  For,  otherwise,  the  only 
evidence  which  could  support  his  title,  possession,  or  rights  might  be 
lost  by  the  death  of  his  witnesses;  and  the  adverse  party  might 
purposely  delay  any  suit  to  vindicate  his  claims  with  a  view  to  that 

(g)  2  Black.  Comm.  450. 


636  EQUITY     JURISPRUDENCE.  [CH.    XLI. 

very  event  (r).  And  the  enlarged  jurisdiction  of  the  court  to  deter- 
mine questions  which  may  arise  in  the  future  has  restricted  the 
exercise  of  this  jurisdiction  (s).  If  proceedings  are  actually  pending 
the  remedy  of  a  party  is  for  a  commission  to  take  evidence  de  bene 
esse  in  the  action,  and  not  independent  proceedings  to  perpetuate 
testimony  (t). 

§  1509.  As  to  the  right  to  maintain  a  bill  to  perpetuate  testimony, 
there  is  no  distinction  whether  it  respects  a  title  or  claim  to  real 
estate,  or  to  personal  estate,  or  to  mere  personal  demands ;  or  whether 
it  is  to  be  used  as  matter  of  proof  in  support  of  the  plaintiif 's  action, 
or  as  matter  of  defence  to  repel  it  (u).  But  there  is  this  difference 
between  a  bill  of  discovery  and  a  bill  to  perpetuate  testimony,  that 
the  latter  may  be  brought  in  many  cases  where  the  former  cannot  be. 
Thus,  in  cases  which  involve  a  penalty  or  forfeiture  of  a  public  nature, 
a  bill  of  discovery  will  not  lie  at  all.  And,  in  cases  which  involve  only 
a  penalty  or  forfeiture  of  a 'private  nature,  it  will  not  lie,  unless  the 
party  entitled  to  the  benefit  of  the  penalty  or  forfeiture  waives  it  (x). 
But  no  such  objection  exists  in  regard  to  a  bill  to  perpetuate  testi- 
mony ;  for  the  latter  will  lie,  not  only  in  cases  of  a.  private  penalty  or 
forfeiture,  without  waiving  it  where  it  may  be  waived,  as  in  cases  of 
waste,  or  of  the  forfeiture  of  a  lease,  but  also  in  cases  of  public 
penalties,  such  as  for  the  forgery  of  a  deed,  or  for  a  fraudulent  loss  at 
sea  (y).  There  was  formerly  no  jurisdiction  to  entertain  a  bill  to 
perpetuate  testimony  where  a  title  of  honour  was  in  question.  This 
was  remedied  by  statute  5  &  6  Vict.  c.  69,  and  the  statutory  provisions 
are  now  embodied  in  rule  35  of  Order  XXXVII. 

§  1510.  There  is  also,  perhaps,  another  difference  between  the  case 
of  a  bill  of  discovery,  and  that  of  a  bill  to  perpetuate  testimony,  in 
regard  to  a  bond  fide  purchaser  for  a  valuable  consideration  without 
notice.  We  have  seen  that  the  former  bill  is  not  maintainable  against 
him  (z).  But  as  the  latter  asks  for  no  discovery,  and  only  seeks  to 
perpetuate  testimony,  which  might  be  used  at  the  time,  if  the  circum- 
stances called  for  it,  and  an  action  were  brought,  it  does  not  seem 
open  to  the  same  objection.  And  there  is  this  rea-son  for  the  distinc- 
tion, that  otherwise  the  plaintiff  might  lose  his  legal  rights  by  the 
mere  defect  of  t«stiraony,  which,  if  he  could  maintain  a  suit,  he  would 
clearly  be  entitled  to  (a). 

(r)  Angell  v.  Angell,  1  Sim.  &  Stu.  83,  and  cases  noted. 

(s)  West  V.  Lord  Sackville,  [1903]  2  Ch.  378. 

(t)  Earl  Spencer  v.  Peek,  L.  E.  3  Bq.  415. 

(u)  Order  XXXVII.,  rule  35  ;  Earl  of  Suffolk  v.  Green,  1  Atk.  450. 

(x)  Ante,  §  §  1319,  1320,  1494. 

[y)  Earl  of  Suffolk  v.  Green,  1  Atk.  450;  Brooking  v.  Maudslay,  Sons  S  Field,  38 
Ch.  D.  636. 

(z)  Ante,  §  1502. 

(a)  Dursley  v.  Fitzhardinge,  6  Ves.  263,  264;  ante,  §  1508,  and  note;  Ross  v. 
Close,  5  Bro.  Pari.  Cas.  562. 


§  1509—1513.]  DISCOVERY.  637 

§  1511.  It  follows,  from  the  very  nature  and  objects  of  such  bills, 
that  the  plaintiff,  who  is  desirous  of  perpetuating  evidence,  must,  by 
his  bill,  show  that  he  has  some  interest  in  the  subject-matter,  and 
that  it  may  be  endangered  if  the  testimony  in  support  of  it  be  lost  (fc). 
Courts  of  equity  will  not,  however,  perpetuate  testimony  in  support 
of  the  right  of  a  plaintiff,  which  may  be  immediately  barred  by  the 
defendant  (c).  But  if  the  interest  be  a  present  vested  one,  not  liable 
to  such  an  objection,  it  is  perfectly  immaterial  how  minute  that 
interest  may  be ;  or  how  distant  the  possibility  of  its  coming  into  actual 
possession  and  enjoyment  may  be.  A  present  interest,  the  enjoyment 
of  which  may  depend  upon  the  most  remote  and  improbable  contin- 
gency, is,  nevertheless,  a  present  estate,  although  with  reference  to 
chances,  it  may  be  worth  little  or  nothing  (d).  On  the  other  hand, 
although  the  contingency  may  be  ever  so  proximate  and  valuable,  yet 
if  the  party  has  not,  by  virtue  of  that,  an  estate  (as  in  the  case  of 
the  due  execution  of  a  will  of  a  lunatic),  courts  of  equity  will  not 
interfere  to  perpetuate  evidence  touching  it  (e). 

§  1512.  If  the  bill  is  sustained,  and  the  testimony  is  taken,  the 
suit  terminates  with  the  examination ;  and,  of  course,  is  not  brought 
to  a  hearing  (/).  But'  tiie  decretal  order  of  the  court  granting  the 
commission  directs  that  the  depositions,  when  taken,  shall  remain 
to  perpetuate  the  memory  thereof,  and  to  be  used,  in  case  of  the 
death  of  the  witnesses,  or  their  inability  to  travel,  as  there  shall  be 
occasion   (g). 

§  1513.  There  was,  until  the  Judicature  Act,  1873,  another  species 
of  bills  having  a  close  analogy  to  that  to  perpetuate  testimony,  and 
often  confounded  with  it;  but  which,  in  reality,  stood  upon  distinct 
considerations.  We  allude  to  bills  to  take  testimony  de  bene  esse, 
and  bills  to  take  the  testimony  of  persons  resident  abroad,  to  be 
used  in  suits  actually  pending  in  the  country  where  the  bills  were 
filed  (h).  There  was  this  broad  distinction  between  bills  of  this  sort- 
and  bills  to  perpetuate  testimony,  that  the  latter  were,  and  could  be, 
brought  only  by  persons  who  were  in  possession,  under  their  title,  and 
who  could  sue  at  law,  and  thereby  had  an  opportunity  to  examine 
their  witnesses  in  such  suit.  But  bills  to  take  testimony  de  bene  esse 
might  be  brought,  not  only  by  persons  in  possession,  but  by  persons 
who  were  out  of  possession,  in  aid  of  the  trial  at  law  (i).     There  was 

(b)  Mason  v.  Goodburne,  Eep.  t.  Pinch,  391;  Dursley  v.  Fitzhardinge,  6  Ves. 
261,  262  ;  Earl  of  Belfast  v.  Chichester,  2  Jac.  &  Walk.  449,  451. 

(c)  Dursley  v.  Fitzhardinge,  6  Ves.  260  to  262;  Earl  of  Belfast  v.  Chichester,  2 
Jac.  &'Walk.  451,  452. 

(d)  Allan  v.  Allan,  15  Ves.  136;  Earl  of  Belfast  v.  Chichester,  2  Jac.  &  Walk.'  451, 
452. 

(e)  Sackvill  v.  Ayleworth,  1  Vem.  105. 

{/)  Ellice  V.  Roupell,  32  Beav.  308 ;  Order  XXXVII.  r.  38. 
(g)  Mason  v.  Goodiume,  Eep.  t.  Pinch,  391,  392. 
(h)  3  Black.  Comm.  438;  Gilb.  For.  Eoman.  140. 
(i)  1  Mad.  Prac.  Ch.  153. 


638  EQUITY     JURISPRUDENCE.  [CH.    XLI. 

also  another  distinction  between  them,  which  was,  that  bills  de  bene 
esse  could  be  brought  only  when  an  action  was  then  depending  and 
not  before  (k). 

§  1514.  Courts  of  common  law  might  adjourn  a  case  upon  the 
ground  that  a  material  witness  was  absent,  or  his  evidence  not 
immediately  available.  The  order  was  granted  more  reluctantly  in 
the  case  of  a  plaintiff  than  of  a  defendant,  for  the  plaintiff  might 
withdraw  the  record  or  submit  to  a  nonsuit  (I),  a  privilege  not  now 
available  to  him  in  the  Supreme  Court  (m).  But  they  had  no  authority 
to  issue  commissions  to  take  the  testimony  of  witnesses  de  bene  esse 
in  any  case  (n).  But  courts  of  equity  were  constantly  in  the  habit  of 
exercising  such  jurisdiction  in  aid  of  trials  at  law,  where  the  subject- 
matter  admitted  of  present  judicial  investigation,  and  a  suit  was 
actually  pending  in  some  court  (o).  They  would,  for  example,  upon 
a  proper  bill,  grant  a  commission  to  examine  witnesses,  who  were 
abroad,  and  who  were  material  witnesses  to  the  merits  of  the  cause, 
whether  the  adverse  party  consented  thereto  or  not  (p).  They  would 
also  entertain  a  bill  to  preserve  the  testimony  of  aged  and  infirm 
witnesses,  resident  at  home,  and  of  witnesses  about  to  depart  from  the 
country,  to  be  used  in  a  trial  at  law,  in  a  suit  then  pending,  if  they 
were  likely  to  die  before  the  time  of  trial  might  have  arrived  (g). 
They  would  even  entertain  such  a  bill  to  preserve  the  testimony  of  a 
witness,  who  was  neither  aged  nor  infirm,  if  be  were  a  single  witness 
to  a  material  fact  in  the  cause  (r).  This  latter  case  stood  upon  the 
same  general  ground  as  the  other;  that  is  to  say,  the  extreme  danger 
to  the  party  of  an  irreparable  loss  of  aU  the  evidence,  on  which  he 
might  have  relied  in  support  of  his  right  in  the  trial  at  law;  for  that, 
which  depends  upon  a  single  life,  must  be  practically  treated  as  being 
very  uncertain  in  its  duration  (s).  In  one  case  a  commission  issued 
to  examine  two  material  witnesses  (t).  But  it  does  not  appear  from 
•the  meagre  report  whether  they  deposed  to  distinct  facts  (w). 

§  1514a.  The  present  practice  as  to  taking  evidence  de  bene  esse 
is  regulated  by  Orders  of  the  Supreme  Court,  1883.  Order  37,  r.  5, 
provides  that,  "  The  court  or  a  judge  may  in  any  cause  or  matter 
where  it  shall  appear  necessary  for  the  purposes  of  justice,  make  any 
order  for  the  examination  upon  oath  before  the  court  or  a  judge  or 

(k)  Angell  v.  Angell,  1  Sim.  &  S.  83;  Ellice  v.  Roupell,  32  Beav.  808. 

(l)  Turquand  v.  Dawson,  1  Cr.  M.  &  E.  709 ;  Turner  v.  Merryweather,  7  C.  B. 
251.  (m)  Fox  V.  Star  Newspaper  Co.,  [1900]  A.  C.  19. 

(n)  3  Black.  Comm.  383;  Macaulay  v.  Shackell,  1  Bligh  N.  S.  96. 

(o)  Macaulay  v.  Shackell,  1  Bligh  N.  S.  96. 

(p)  Moodalay  v.  Morton,  1  Bro.  C.  C.  469;  Macaulay  v.  Shackell,  1  Bligh  N.  S. 
96 ;  Bellamy  v.  Jones,  8  Ves.  81. 

(q)  If  a  witness  is  seventy  years  old,  he  is  deemed  aged  within  the  rule.  Fitzhugh 
V.  Lee,  Ambler,  65;  Rowe  v. ,  13  Ves.  261,  262;  Prichard  v.  Gee,  5  Mad.  364. 

(r)  Hankin  v.  Middleditch,  2  Bro.  C.  C.  641,  and  Mr.  Belt's  note. 

(s)  Shirley  v.  Earl  Ferrers,  3  P.  Will.  77. 

(t)  Gholmondeley  v.  Oxford,  i  Bro.  C.  C.  167.   (u)  Bidder  v.  Bridges,  26  Ch.  D.  1. 


§   1514—1516.]  DISCOVERY.  639 

any  officer  of  the  court,  or  any  other  person,  and  at  any  place  of  any 
witness  or  person,  and  may  empower  any  party  to  such  cause  or 
matter  to  give  such  deposition  in  evidence  therein  on  such  terms,  if 
any,  as  the  court  or  a  judge  may  direct."  Under  this  rate,  if  the 
court  is  satisfied  either  when  the  application  is  made,  or  upon  an 
application  to  discharge  an  order  granted  ex  parte  for  the  examination 
of  witnesses  de  bene  esse,  that  it  is  not  necessary  for  the  purposes  of 
justice  either  altogether  or  to  the  extent  to  which  it  goes,  then  the 
court  ought  not  to  grant  it  in  the  one  case,  and  ought  not  to  maintain 
it  any  further  than  is  necessary  in  the  other.  And  although  the  fact 
that  a  witness  is  seventy  years  of  age  is  prima  facie  a  good  ground  for 
an  order  to  exajnine  him  de  bene  esse,  yet  if  there  are  a  great  number 
of  witnesses  to  the  same  fact,  especially  if  they  are  witnesses  as  to 
custom,  reputation,  or  the  like,  this  is  not  a  sufficient  reason,  why 
they  should  be  examined  under  an  order  de  bene  esse  (x). 

§  1515.  In  regard  to  commissions  to  take  the  testimony  of  wit- 
nesses abroad,  although  they  are  grantable  in  civil  actions  only ;  yet 
they  are  not  confined  to  cases  purely  ex  contractu,  or  touching  rights 
of  property;  but  they  are  grantable  in  cases  of  actions  for  civil  torts, 
although  such  torts  may  also  be  indictable.  Thus,  for  example,  a 
commission  will  be  granted  to  take  the  testimony  of  witnesses  abroad, 
in  order  to  establish  a  justification  in  a  civil  action  for  a  libel,  although 
the  justification  involves  a  criminal  charge  against  the  plaintiff,  and 
the  libel  may  be  the  subject  of  an  indictment  (y). 

§  1516.  Some  confusion  exists  in  the  authorities  as  to  the  publica- 
tion of  the  testimony  in  the  three  distinct  classes  of  cases  before  men- 
tioned :  first,  on  examination  of  witnesses  de  bene  esse,  pending  a 
cause ;  secondly,  on  examinations  of  witnesses  in  a  bill,  merely  to  prove 
a  will,  per  testes,  as  it  is  called,  that  is,  by  the  subscribing  witnesses; 
and  thirdly,  on  examinations  of  witnesses  on  common  bills  to  per- 
petuate testimony;  as,  for  example,  to  perpetuate  the  testimony 
respecting  a  will,  or  a  deed.  Owing  to  a  change  in  the  practice  only 
the  third  has  become  of  importance  (z).  Publication  is  not  ordinarily 
allowed,  during  the  lifetime  of  the  witnesses,  because  of  the  dangers 
incident  thereto,  there  being  no  limits  as  to  the  points  to  which  the 
witnesses  are  examined ;  but  the  publication  is  a  matter  resting  in  the 
sound  discretion  of  the  court,  upon  the  special  circumstances  of  the 
case;  and  it  will  be  allowed  or  refused  accordingly  (a).  In  this  last 
class  of  cases  (of  bills  to  perpetuate  testimony),  when  the  examina- 
tions are  taken,  the  case  is  considered  to  be  at  an  end ;  or  at  least  as 
suspended,   until  the  anticipated   action  is  brought;   and   then,   at  a 

(x)  See  the  judgment  of  the  Earl  of  Selborne,  L.C.,  in  Bidder  v.  Bridges,  26  Ch, 
D.  1. 

iy)  Macaulay  v.  Shackell,  1  Bligh  N.  S.  96. 

(z)  See  Evans  v.  Merthyr  Tydfil  Urban  Council,  [1899]  1  Ch.  241. 

(a)  Harris  v.  Cotterell,  3  Mer.  678;  Barnsdale  v.  Lowe,  2  Euss.  &  M.  142. 


640  EQUITY     JURISPRUDENCE.  [CH.    XLI. 

suitable  period,  an  order  for  the  publication  thereof  may  be  obtained 
from  the  court  upon  a  proper  case  made,  such  as  the  death  or  absenct! 
of  the  witnesses,  or  their  inability  to  attend  the  trial  (b). 

§  15160-.  In  a  late  case  (c)  it  was  held  that  evidence  taken  de  bene 
esse  in  a  former  suit  was  admissible  on  behalf  of  the  plaintiffs  in  a, 
latter  suit,  since  the  issue  in  the  two  suits  was  the  same,  and  there 
was  privity  of  estate  between  the  parties  in  the  two  suits  respec- 
tively. 

§  1532.  Here  (d)  these  Commentaries  are  regularly  brought  to  their 
close  according  to  their  original  design.  Let  not,  however,  the 
ingenuous  youth  imagine  that  he  also  may  here  close  his  own  pre- 
paratory studies  of  Equity  Jurisprudence,  or  content  himself  for  the 
ordinary  purposes  of  practice  with  the  general  survey  which  has  thus 
been  presented  to  his  view.  What  has  been  here  offered  to  his 
attention  is  designed  only  to  open  the  paths  for  his  future  inquiries; 
to  stimulate  his  diligence  to  wider  and.  deeper  and  more  comprehensive 
examinations ;  to  awaten  his  ambition  to  the  pursuit  of  the  loftiest 
objects  of  his  profession ;  and  to  impress  him  with  a  profound  sense  of 
the  ample  instruction  and  glorious  rewsirds  which  await  his  future 
enterprise  and  patient  devotion. in  the  study  of  the  first  of  human 
sciences — the  Law.  He  has  as  yet  been  conducted  only  to  the 
vestibule  of  the  magnificent  temple  reared  by  the  genius  and  labours 
of  many  successive  ages  to  Equity  Jurisprudence.  He  has  seen  the 
outlines  and  the  proportions,  the  substructions  and  the  elevations,  of 
this  wonderful  edifice.  He  has  glanced  at  some  of  its  most  prominent 
parts,  and  observed  the  solid  materials  of  which  it  is  composed,  as 
well  as  the  exquisite  skill  with  which  it  is  fashioned  and  finished.  He 
has  been  admitted  to  a  hasty  examination  of  its  interior  compartments 
and  secret  recesses.  But  the  minute  details,  the  subtle  contrivances, 
and  the  various  arrangements  which  are  adapted  to  the  general 
exigencies  and  conveniences  of  a  polished  society,  remain  to  invite  his 
curiosity  and  gratify  his  love  of  refined  justice.  The  grandeur  of  the 
entire  plan  cannot  be  fully  comprehended  but  by  the  persevering 
researches  of  many  years.  The  masterpieces  of  ancient  and  modem 
art  still  continue  to  be  the  study  and  admiration  of  all  those  who  aspire 
to  a  kindred  excellence ;  and  new  and  beautiful  lights  are  perpetually 
reflected  from  them  which  have  been  unseen  or  unfelt  before.  Let 
the  youthful  jurist  who  seeks  to  enlighten  his  own  age  or  to  instruct 
posterity,  be  admonished  that  it  is  by  the  same  means  alone  that  he 
can  hop©  to  reach  the  same  end.       Let  it  be  his  encouragement  and 

(b)  Morrison  v.  Arnold,  19  Vea.  671;  Earl  of  Abergavenny  v.  Powell,  1  Mer.  433; 
Teale  v.  Teale,  1  Sim.  &  S.  385. 

(c)  Llanover  v.  Homfray ;  Phillips  v.  Llanover,  19  Ch.  D.  224.  See  Evans  v. 
Merthyr  Tydfil  Urban  Council,  [1899]  1  Ch.  241. 

(d)  §  §  1617  to  1531  dealt  with  the  Bubject  of  Peculiar  References  in  Equity ;  these 
have  now  no  existence,  and  the  sections  are  therefore  omitted. 


§  1516a— 1532.]  discovery.  641 

consolation  that  by  the  same  means  the  same  end  can  be  reached.  It 
is  but  for  him  to  give  his  days  and  nights  with  a  sincere  and  constant 
vigour  to  the  labours  of  the  great  masters  of  his  own  profession,  and 
although  he  may  now  be  but  a  humble  worshipper  at  the  entrance  of 
the  porch,  he  may  hereafter  entitle  himself  to  a  high  place  in  the 
ministrations  at  the  altars  of  the  sanctuary  of  justice. 


" 


INDEX. 

Note. — The  references  are  to  the  sections. 

ABATEMENT 

in  the  case  of  debts,  554 
in  the  case  of  legacies,  555 

ACCIDENT 

defined,  78,  93,  101,  102 

not  exclusively  cognizable  in  equity,  60,  76 

when  entertained  at  law,  79,  80,  81 

concurrent  equitable  jurisdiction,  76,  79,  80,  81,  109 

conditions  of  relief  in  equity,  82,  85 

relief  in  cases  of  lost  or  destroyed  bonds,  notes,  and  other  instrunaents,  81-f 

of  penalties,  89-93 

of  defective  execution  of  a  power,  94-97,  169-173 

of  express  contract,  100-102 

where  parties  stand  equally  innocent,  103,  104 

where  the  equities  are  equal,  106 
relief  against  a  purchaser  for  value,  108 

ACCOUNT, 

common  law  action  for,  442-449,  451,  504 

upon  balance  of  account,  523 
concurrent  jurisdiction  in  equity,  441-453 

foundation  of,  nature  of  remedy,  450-453 

to  prevent  multiplicity  of  suits,  450,  464,  512,  514 
to  obtain  discovery,  451,  458,  462-464,  512,  514 

in  cases  of  accident,  fraud,  and  mistake,  452,  511,  513 

in  cases  of  mutual  accounts,  458,  459 

where  the  items  are  all  on  one  aide,  458,  459 

in  cases  of  agency,  462-468 

between  co-owners  of  property,  466 

between  trustees  and  beneficiaries,  466,  512 

between  partners,  453,  466,  671 

in  cases  of  apportionment,  469-489 

in  cases  of  average,  490-491 

in  cases  of  contribution,  492-505 

in  cases  of  liens  and  pledges,  506,  507 

in  cases  of  torts,  467,  511,  512,  513 

in  cases  of  wast«,  515-619 

between  landlord  and  tenant,  508 

in  cases  of  adverse  claims,  510-514 

in  cases  of  dower,  512 

in  cases  of  elegit,  510,  511 

all  parties  deemed  actors,  522 

reference  to  master  to  take,  450 

special  directions  as  to  taking,  625a 
penal  order,  468,  526o 


644 


INDEX. 


ACCOUNT— contmued. 

impeaching  accounts,  on  the  ground  of  accident,  fraud,  or  mistake,  623 
re-opening,  523,  524 
liberty  to  surcharge  and  falsify,  525 
settled  accounts,  523,  526,  627 
effect  of  provision  "  errors  excepted,"  525a,  526 
effect  of  the  Statute  of  Limitations  and  laches,  529 

ACQUIESCENCE, 

effect  of,  322a,  926a 

ADEMPTION 

of  legacy  by  other  provision,  1099-1122 

ADMINISTEATION, 

former  jurisdiction  of  common  law  and  ecclesiastical  courts,  635-538,  539-541 
concurrent  equitable  jurisdiction,  530-533,  642,  543,  560 

at  the  instance  of  personal  representative,  544,  545,  548a 

at  the  instance  of  a  single  creditor  for  his  own  debt,  546 

creditors'  bills,  546-549 
statutory  jurisdiction  in  bankruptcy,  543 

in  the  county  court,  543 
bill  by  personal  representative  for  discovery  of  assets,  546a 
effect  of  decree  upon  the  remedies  of  creditors,  548,  549 
assets,  defined,  631 
legal  assets,  551 

administration  of,  553,  557 
equitable  assets,  552 

administration  of,  64/,  550,  554,  567 
liens  and  charges,  553 
abatement  in  the  cases  of  creditors,  564 

of  legatees,  555,  656 
apportionment  rule  in  Howe  v.  Lord  Dartmouth,  475o 
marshalling,  557,  574a 

does  not  interfere  with  creditor's  right  to  elect  between   alternative 
remedies,  660,  662 

where  a  creditor  has  two  funds,  558,  662,  563 

where  one  mortgage  covers  two  estates,  559,  562,  664 

where  mortgagee  exhausts  the  personal  estate,  564,  564a 

does  not  prejudice  creditor's  right  to  be  paid,  561 

in  favour  of  legatees,  665-569 

in  favour  of  widow,  568 

in  favour  of  heir  or  devisee ,  570 

practice  borrowed  from  civil  law,  567 
primary  liability  of  personal  estate  for  payment  of  debts,  571 

exemption  of,  by  testator,  572-574 

effect  of  Eeal  Estate  Charges  Acts,  574a 
order  of  application  of  assets,  577 

where  assets  are  collected  under  an  ancillary  or  foreign  administration,  583 
following  assets,  580-682 

ADMINISTEATOE 

frauds  by,  422-424,  679,  680 
waste  by.  579,  580 
collusion  by,  422-424 

ADVANCEMENT, 

purchase  in  the  name  of  a  son,  1202-1205 
in  the  name  of  a  wife,  1204 
in  the  name  of  a  stranger,  1201,  1201a,  1202 


INDEX.  645 


AGENT, 

fiduciary  position  of  agent,  313,  316,  4G3 

duty  to  keep  accounts  and  preserve  vouchers,  462,  468 

principal's  property  distinct  from  his  own,  468 
survival  of  actions  for  wrongs  in  equity,  467 
action  for  money  had  and  received,  463,  464 

for  account,  462-468 

AGEEBMENT, 

effect  of  fraud  or  undue  influence,  260,  265-267 
effect  of  mistake,  153a 

AGKEEMENT  IN  WRITING, 
effect  of  mistake,  152-168 
admissibility  of  parol  evidence,  157-164 

effect  of  the  Statute  of  Frauds,  158,  330 

ALIENATION, 

restraint  on,  1429o 

ALIMONY, 

jurisdiction  to  decree,  1421,  1472 

ANCIENT  LIGHTS, 

injunction  against  obstruction,  926 

ANNUITIES 

during  widowhood,  285 

ANTICIPATION, 

restraint  on,  14290 

APPOINTMENT.    See  Power. 

relief,  where  defective,  94-98,  169-173 
affected  by  fraud,  252,  255-255b 

APPOETIONME-NT 

of  contracts,  at  law,  470-472,  475,  477,  478 

in  equity,  104,  469-488 
of  charges  and  incumbrances,  477,  483-488 
of  premiums,  in  cases  of  apprenticeship,  89,  472 

in  partnership  cases,  89,  472 
of  rent,  475,  476 
of  maintenance,  479 
rule  in  Howe  v.  Lord  Dartmouth,  475o 

APPRENTICE, 

apportionment  of  premium,  89,  472 

APPROPRIATION 

of  payments,  459c-459! 

ARBITRATION, 

civil  law  as  to,  1460-1463 

agreement  to  refer,  when  enforced  in  equity,  670,  1457 

the  arbitrator,  not  compelled  to  make  award,  1457 

when  bound  to  disclose  grounds  of  award,  1457,  1498 
misconduct  of,  1458o 
the  award,  when  specifically  enforced  in  equity,  1451-1459 
effect  of  fraud,  mistake,  or  accident,  1452 
mistake  of  law,  1451,  1455 
mistake  of  fact,  1456 


646  INDEX. 

AERANGEMENTS,  FAMILY,  121-133,  232 

ASSETS, 

legal,  531,  651 
equitable,  551,  552 
marshalling  of,  557-576 

ASSIGNMENT 

of  dower,  equitable  jurisdiction,  624-630a 

in  fraud  of  creditors,  369-381 

for  benefit  of  creditors,  972,  1036,  1036a,  1037 

of  choses  in  action,  validity  at  law,  1039,  1040,  1055 

equitable  assignments,  informal,  1041 

what  property  or  interests  may  be  assigned,  294, 1040, 1040b,  1041,  1055 

how  affected  by  champerty   and  maintenance,  1040c,  1048-1055 

priority  by  notice,  1047,  1047a 

voluntary,  not  enforced,  972,  1196 
when  revocable,  972,  1045,  1196 
assignment  under  the  Judicature  Act,  1039,  1041 

AUCTION, 

damping  sales,  293 

employment  of  puffer,  293 

purchase  by  trustee  of  trust  property  at,  322 

sale  of  post  obit  bonds  at,  347 

as  evidence  of  value,  335a 

AUDITORS, 

duty  of  in  action  of  account,  447,  448 

AULA  REGIS,  36 

AVERAGE 

defined,  490 

derived  from  Ehodian  law,  through  civil  law,  490 

equitable  jurisdiction  in  cases  of,  490,  491 

present  concurrent  jurisdiction  of  Admiralty  Division,  491 

AWARD.    See  Abbiteation. 


BAILIFFS  AND  RECEIVERS, 

who  were,  at  common  law,  446,  447 
remedies  of,  at  common  law,  446,  447 

BAILMENT, 

remedy  at  common  law,  464,  533,  1041 
equitable  jurisdiction  in  cases  of,  1041 

BANKRUPTCY,  TRUSTEE  IN, 
when  subject  to  equities,  1411 

BARGAINS, 

catching,  188,  334,  335,  335c 
unconscionable,  244-250,  381 
with  expectant  heirs  and  reversioners,  334-348 

BENEFICIARY.    See  Tehst. 
who  is,  321 

BILL  OF  THE  PEACE,  852-860 


INDEX.  647 

BILL  QUIA  TIMET,  826-851 

BILL  OP  DISCOVEEY,  31,  1480-1804a 

BILL  TO  PEEPETUATE  TESTIMONY,  1505-1512 

BILL  OP  GONPOEMITY, 
what  it  was,  544 

BONA  PIDB  PURCHA6EES, 

protection  of,  64c,  108,  381,  406,  411,  416,  425,  426,  486 

T30ND, 

lost,  relief  in  cases  of,  81-89 

of  suretyship,  relief  in  case  of,  498,  498a,  499-499o 

reforming  on  ground  of  mistake,  162-166 

with  penalty,  relief  in  caeesV,  89,  1312,  1316o 

for  assisting  in  an  elopement,  264 

fraudulent,  upon  intended  marriage,  266-271 

for  giving  consent  to  marriage,  266,  267 

post  obit,  342,  343,  347 

obtained  by  solicitor  from  client,  312 

lacking  bond  debt,  418 

BOUNDARIES, 

confusion  of,  concurrent  jurisdiction  in  cases  of,  99a,  609-622 
rule  of  civil  law  as  to,  614 
common  law  remedy  in  cases  of,  616-618 
grounds  for  exercise  of  jurisdiction,  to  prevent  multiplicity  of  suits,  616-619, 
621 
in  cases  of  fraud,  619 

from  relation  of  parties,  where  a  special  equity  is  set  up,  616,  616,  620, 
622 
procedure,  619 


CANCELLATION 

of  deeds,  when  decreed,  692-707 

illegal  on  their  face,  700 

who  may  require,  707 

upon  what  terms,  693-698,  707 

by  parties  by  mistake,  167 
of  will,  by  accident,  99 

CATCHING  BARGAINS, 

relief  against,  188,  334,  335 

statutory  extension,  335,  385b 

CAVEAT  EMPTOR, 
principle  stated,  212 

CESSION, 

doctrine  of  civil  law  as  to,  494,  635-637 

CESTUI  QUE  TRUST.    See  Trust. 

CHAMPERTY 
defined,  1048 
effect  on  contracts  and  conveyances,  294,  1049-1054 


648  INDEX. 

CHANCELLOR, 

authority  and  dignity  of,  35-41 
character  o£  Cardinal  Wolsey  as,  43 
Sir  Thomas  More,  43 
Lord  Bacon,  43 
Lord  Nottingham, '44 
Lord  Hardwicke,  44 

CHANCERY, 

court  of,  35-48 

CHARITIES, 

history  of  equity  jurisdiction,  1137-1154!) 

modern  statutory  jurisdiction  of  charity  commissioners,  1159 

what  are  now  deemed,  1155-1164,  1182,  1183 

statutory  definition  of,  1160 
how  favoured,  1068,  1165-1174,  1179 
gifts  to,  how  construed,  1164,  1183,  1191ffi 

uncertainty  of  objects,  1166,  1169,  1176,  1181 

doctrine  of  cy-pres,  1169,  1170,  1170o,  1176,  1177 

defects  in  conveyances,  1171 

surplus,  how  applied,  1178,  1181 

of  land,  1186,  1193 
marshalling  of  assets  in  favour  of,  1180 
administration  of  trusts  by  court,  1187-1191a 

by  crown,  1190,  1191 

by  trustees,  1191,  1192 
rule  against  perpetuities  as  applied  to,  1192a 
jurisdiction  in  cases  of  foreign  charities,  1184,  1186 

CHATTELS, 

specific  delivery  of.  when  decreed,  708-710,  717-720 
injunction  to  prevent  transfer  of,  906,  907 

CHILDREN.    See  Parent  and  Child. 

CHOSES  IN  ACTION, 

King  may  assign  or  take  an  assignment  of,  1039 

equitable  assignment  of,  1040 

assignment  under  Judicature  Act,  1039,  1041 

COMPENSATION  IN  CIVIL  LAW 
defined,  1438-1444 

COMPENSATION  OR  DAMAGES  IN  EQUITY 
in  cases  of  partition,  for  owelty,  654 

for  improvements,  655 
in  cases  of  specific  performance  of  land,  794-7966 

of  chattels,  723 

COMPOSITIONS 

in  fraud  of  creditors,  378-381 
creditors'  trust  deeds,  1036o,  10366 

COMPROMISES. 

when  valid,  121-132,  135 

mistake  of  law,  121-131,  135 

peculiar  eoQSiderations  in  the  case  of  family  arrangements,  132 


INDEX.  '649 


CONCEALMENT, 

equitable  relief  in  cases  of,  204,  220 

in  cases  of  sales,  212 

in  cases  of  suretyship,  215,  324,  383 

in  cases  of  insurance,  216 

in  fraud  of  marriage,  268-273 

by  party  in  fiduciary  position,  135,  218,  308-323a 

in  compositions  with  creditors,  378-380 

of  title,  385-3930 

of  crimes,  agreements  for,  294 

CONDITIONS 

in  restraint  of  marriage,  274-291 

as  to  consent  to  marriage,  257,  284,  291 

how  viewed  at  common  law,  1302-1307a 

defined,  as  possible  or  impossible,  1304,  1307o,  1311 

as  precedent  or  subsequent,  1306,  1307 

as  illegal,  1304,  1306,  1307 

as  repugnant,  1304,  1306,  1307,  1312 
penal,  when  relieved  against  in  equity,  1312-1316a 
of  re-entry,  when  relieved  against  in  equity,  1321-1324 
of  forfeiture,  1325 

waiver  of,  1325o 

CONFIRMATION 

of  void  or  voidable  contracts,  263,  345 

CpNFORMITY,  BILL  OF, 
What  it  was,  544 


CONFUSION 

of  boundaries,  99a,  609-622 
of  property,  468,  623 

CONSENT 

in  cases  of  contract,  222,  223 

to  marriage,  conditions  as  to,  257 

CONSIDEEATION, 

good  or  valuable,  defined,  354 

valuable  to  support  contract,  787,  793(i,  973,  987 

meritorious  to  support  contract,  787 

inadequacy  of,  in  cases  of  contract,  150,  244,  245,  246 
in  cases  of  conveyance,  246,  354,  355,  1196-1198 
where  parties  cannot  be  placed  in  statu  quo,  250 
opinions  of  other  jurists,  247-249 

CONTINGENT  INTERESTS  AND  RIGHTS 
assignable  in  equity,  1040,  1055 

CONTRACTS, 

consent  necessary  in,  222,  223 

consent  of  lunatic  or  person  mentally  deficient,  223,  237,  233 

consent  of  drunkard,  230,  231 

effect  of  duress,  239 
apportionment  of,  89,  468-472 
unreasonable,  when  binding,  237,  238,  331-335 


650  INDEX. 

CONTEACTS— continued. 

effect  of  illegality,  257,  274-303 

contracts  affecting  public  justice,  294,  1048,  1049 

contracts  for  sale  of  offices,  294,  295 

contracts  of  wager,  294,  303 

contracts  in  restraint  of  trade,  292,  293 

usurious  contracts,  301,  302 

arising  from  turpitude,  296-300 

marriage  brokage  contracts,  260-263 
when  joint  and  several,  162-164,  676 
right  to  specific  performance,  708-711,  712-788 

voluntary  contracts,  when  enforced  or  not,  705a,  787,  793o,  973,  987 
operative  to  change  character  of  property,  790-793 
where  capable  of  confirma,tion  or  not,  263,  345 

CONTEIBUTION, 

jurisdiction  in  cases  of,  490-605 

among  co-owners  to  recoup  expenditure  or  discharge  incumbrances,  477,  478, 

483-485,  505 
between  sureties,  492-505 

between  legatees  in  case  cf'deficiency  of  assets  between  partner,  504 
under  doctrine  of  marshalling,  562-571 

CONVERSION 

of  realty  into  personalty  and  e  contra,  790-793,  1212 
election  against,  792,  793 

CONVEYANCES,  FRAUDULENT,  350-378,  425-436 

COPIES  OF  DEEDS, 

right  to  where  claimed  in  privity  of  title,  704,  704a 

COPYHOLD, 

duty  of  copyholder  to  preserve  boundaries,  620 

COPYRIGHT, 

injunction  to  restrain  infringement,  930-942 

COURT  ECCLESIASTICAL, 

jurisdiction  over  matters  of  administration,  534-541 

over  legacies,  590 

over  trusts,  595 
adoption  of  their  rules  by  courts  of  equity,  278 

COURTS  OF  CHANCERY, 

origin  of  Court  of  Chancery,  33  (note),  38-55,  76 

its  antiquity,  39-47 
bound  by  precedents,  18-23 
procedure,  as  to  parties,  27-30,  478,  485 

as  to  process  and  remedies,  27-30,  439,  492 

as  to  mode  of  trial,  31 

as  to  evidence,  31,  536 

imposition  of  terms,  27,  64e,  85,  1504 
its  general  jurisdiction,  12-17,  24-29,  32,  33,  59-62 
jurisdiction  of,  merged  in  High  Court,  34,  48 

acts  in  personam,  743,  744 

to  stay  proceedings  in  other  courts,  55a 

to  stay  proceedings  in  foreign  courts,  899 

in  respect  of  lands  out  of  jurisdiction,  743,  744 

in  respect  of  bare  money  claims,  1255 

in  charity  cases,  1136-1193 


INDEX.  651 

COURTS  OF  CHANCB'RY— continued. 

jurisdiction  of,  over  lunatics,  1362-1365a 

in  the  case  of  infants,  1327-13616 

division  of,  into  concurrent,  exclusive,  and  auxiliary,  33,  49,  75-77 
concurrent  jurisdiction,  in  matters  of  account,  441-529 

in  matters  of  administration,  530-588 

in  cases  of  legacies,  536,  539,  590-608 

in  matters  of  fraud,  59,  184-243 

in  matters  of  accident,  78-109 

in  cases  of  mistake,  110-177 

in  cases  of  waste,  864,  872,  909-913,  916-919,  928 

in  cases  of  nuisances,  920-927 

in  cases  of  trespass  or  other  invasion  of  proprietary  rights,  930-957 

in  cases  of  confusion  of  boundaries,  609-622 

in  cases  of  partition,  646-658a 

in  cases  of  dower,  624-630 
exclusive  jurisdiction,  in  matters  of  trust,  59,  960-982,  988-996a,  998-999o, 
1058-1073,  1195-1295 

in  cases  of  fraud,  59,  244-257 

in  cases  of  mortgages,  1004-1035o 

in  cases  of  specific  performance,  30,  712-796b 

in  cases  of  equitable  waste,  515,  518a,  914-915a 

in  cases  of  partnership,  659-683 

equitable  assignments  of  choses  in  action  and  expectancies,  1036-1057 

in  cases  of  liens,  506,  1215-1246 
auxiliary  jurisdiction  of,  to  supplement  legal  remedies, 

discovery  and  inspection,  1483-1604o 

to  perpetuate  testimony,  1505-1512 

to  take  evidence  de  hene  esse,  1518,  1514 

to  take  evidence  abroad,  1515 


COURTS  OP  COMMON  LAW, 

equitable  jurisdiction  of  court  of  exchequer,  34,  519 
jurisdiction  of,  in  cases  of  account,  441-445 

in  cases  of  legacies,  591 

to  enforce  specfic  performance,  30,  708 

to  enforce  trusts,  29,  61,  76 

in  cases  of  fraud,  accident  and  confidence,  61,  76 

in  cases  of  lost  instruments,  81,  82 

in  cases  of  suretyship,  492 
distinction  between,  and  courts  of  equity,  19 

in  relation  to  parties,  26-28,  82,  492 

in  relation  to  remedies,  439 


COVENANTS, 

specific  performance,  716-738 

how  far  operative  as  a  lien,  1231,  1249 


CREDITORS, 

defective  execution  of  powers  aided  in  favour  of,  169,  170 

not  put  to  his  election  as  to  remedies,  1092 

administrator  at  the  instance  of,  646-549 

marshalling  of  assets  in  favour  of,  558-659 

marshalling  securities  in  favour  of,  633-645 

rights  of  under  trust  or  power  for  payments  of  debts,  1244-1249 

by  judgment,  enforcing  rights  of  to  execution,  829,  1216-1218 
enforcing  lien  by  sale,  1216,  1216a 
execution  against  one  of  several  partners,  677 

of  firm,  preference  over  separate  cerditor,  675,  676 


652  INDEX. 

CEEDITORS— continaed. 

creditors  trust  deed,  972,  1036o,  1037,  1045,  1196 

constructive  fraud  in  cases  of,  378-380 
conveyances  in  fraud  of,  352-373 

CEOWN, 

its  jurisdiction  over  infants,  1328,  1332 

over  lunatics,  1362-1364 
assignment  of  choses  in  action  by  or  to,  1039 

CUMULATIVE  LEGACIES,  1123a 

CY-PEES, 

construction  in  cases  of  gifts  to  charity,  1169-1170a,  1176 
compliance  with  conditions,  257,  291 

DAMAGES  AND  COMPENSATION, 
where  decreed  in  equity,  794-7966 
liquidated  damages,  defined,  1318 
no  equitable  relief  against,  1318 

DE  BENE  ESSE, 

examination  to  preserve  testimony,  1513-1516a 

DEBTS, 

trust  or  charge  on  land  for  payment,  1060-1064a,  1244-1249 

exoneration  of  land,  1246-1249 

who  may  execute,  1060-1062 
acceleration  of  payment,  1216,  1216a 

DEEDS, 

execution  obtained  from  intoxicated  person,  230,  231 
equitable  mortgage  by  deposit  of,  1020,  1231,  1232 
delivery  and  cancellation,  in  cases  of  fraud,  694-698 

of  deeds  against  public  policy,  695 
of  deeds  against  conscience,  698,  700 

of  title  deeds,  703-705o,  842 

of  deed  functum  officio,  705-706* 

whether  deed  void  or  voidable,  698-701 

at  whose  instance,  706,  706b 

on  what  terms,  707 
discovery  of,  704,  1485,  1490-1493,  1497,  1504,  15040 

DELAY.     See  Statute  of  Limitations. 
generally  discountenanced  in  equity,  64a 
in  cases  of  account,  529 
in  cases  of  specific  performance,  771,  776 
in  cases  of  suretyship,  326 

DEVASTAVIT, 

liability  of  purchaser  from  executor  for,  580,  581 

DISCOVERY, 
bill  for,  31 

in  cases  of  account,  451 

in  cases  of  administration,  538 

in  cases  of  agency,  462-464 

in  cases  of  arbitration,  1498 

in  cases  of  partition,  649 

in  cases  of  partnership,  660 

in  cases  of  actions  to  recover  land,  1504o 


INDEX.  653 

DISCOVEBY— contmued. 

discovery  in  aid  and  discovery  incidental  to  an  action,  1482,  1483 

difference  between  stated,  1489 
exclusvely  an  equitable  remedy,  1484,  1485 

not  applicable  to  proceedings  out  of  the  jurisdiction,  1483 
party  seeking  presumptively  entitled  to,  1488 
grounds  of  objection  stated,  1489 

applicant  must  have  interest  in  the  subject-matter,  1490-1493 

only  applicable  to  civil  suits,  1494 

not  in  cases  of  forfeiture,  1494 

must  be  relevant  to  the  issue,  1497 

only  against  party  to  suit,  1499 

against  purchaser  for  value  without  notice,  1502 

privilege,  1496 
against  officer  of  corporation,  1501 
granted  on  equitable  terms,  1504 
civil  law  as  to,  1486,  1487 

DOCUMENTS,  LOST  AND  DESTROYED, 
equitable  relief  in  cases  of,  81-88,  252,  264 

DOMICIL, 

law  of,  affecting  administration  of  estates,  583 

DONATIONS  MOETIS  CAUSA, 
defioed,  606 

subject  to  a  trust,  607a 
derived  from  civil  law,  607 

DOUBLE  POETIONS,  1109-1115 

DOWER, 

a  legal  right,  624,  626,  628,  630 

concurrent  jurisdiction  in  equity,  620-630o 

account  of  rents  and  profits,  512,  626 

doweresB  favoured  in  equity,  629,  680 

discovery  and  relief  against  purchaser  for  value  without  notice,  628,  630 

election  between,  and  other  provision,  1088 

DRAMATIC  PERFORMANCES, 

injunction  to  prevent  piracy  by,  950 

DRUNKENESS, 

effect  of  on  contracts  and  conveyances,  230-232 

DURESS, 

relief  in  cases  of,  239 

unconscionable  and  improvident  bargains,  237,  244-251,  331,  334-338 


ECCLESIASTICAL  COURTS, 
jurisdiction  of,  278,  536,  590 

ELECTION, 

alternative  meanings  of  .the  word,  1076,  1076,  1080 
equitable  doctrine  of,  1075-1097O 

by  persons  under  disability,  1097b 
in  case  of  creditors,  1086,  1092 
to  what  instruments  applied,  1080-1087a 
equitable  doctrine  of,  raises  case  of  compensation,  1083,  1084 


654 


INDEX. 


ELECTION— continued. 

when  operatve  as  a  forfeiture,  1075-1077,  1086 
what  acta  amount  to  an  election,  1097 
time  for  making,  1097 

effect  of  laches,  1097 
in  cases  of  conversion,  793 
civil  law  as  to,  1078 

ELEGIT, 

account  in  cases  of,  510,  511 
acceleration  of  payment,  1216a 
right  to  sale,  1216a 

ELOPEMENT, 

bonds  for  assisting  in,  264 

EQUITABLE  ASSETS, 
defined,  552 

EQUITY, 

nature  and  character,  1-34 

its  meaning  in  jurisprudence,  1-4 

author's  definition  of,  25 

earlier  definitions  quoted,  1,  2,  3,  7-19 

its  meaning  in  English  jurisprudence,  25-33 

its  meaning  in  Eoman  law,  2,  4,  5 

jurisdiction,  originally  unfettered  by  precedent,  21-22 

early  founded  on  civil  law,  23 

now  bound  by  precedent,  18,  19 

does  not  mitigate  rigour  of  common  law,  11,  12 

does  not  control  legislation,  6-8,  14,  15 
general  consolidation  of  divided  jurisdictions  in  England,  24,  48 

EQUITY  TO  A  SETTLEMENT,  1402-1420 

"  EEEOBS  EXCEPTED,"  525o,  526 

EVIDENCE, 

distinction  in  methods  of  proof,  31 

parol,  to  prove  mistake,  151a,  157-161,  179 

to  prove  fraud,  190 

to  rebut  presumptions,  1102,  1202,  1205 
discovery,  1482-1504o 
examination  de  bene  esse,  1513-1516a 
perpetuating  testimony,  1505-1612 

EXECUTOR  AND  ADMINISTRATOE, 

fraudulent  dealings  with  estate  or  debtors,  422-424,  579-581 
when  a  trustee,  693-595,  1067,  1208,  1209 
power  given  to,  when  a  trust,  1060-1065 

when  it  survives,  1062 

to  carry  on  testator's  trade,  579a 
payment  into  court,  when  ordered,  839 
title  deeds,  deposit  in  court,  when  ordered,  704,  842 

delivery  to  parties,  entitled  when  ordered,  703 
liability  for  acts  or  defaults  of  co-executor,  1281,  1283,  1284 

EXPECTANTS.    See  Heirs. 

relief  of  against,  bargains  and  sales  of  property,  341-348 


INDEX.  655 


FAMILY  COMPROMISES 

supported  on  principles  of  policy,  129,  132 
invalidated  by  concealment  of  material  facts,  217 
for  division  of  property,  265 

FIDUCIARY  RELATIONS, 

constructive  fraud  in  cases  of,  218,  308-323a 

FINE 

defective,  not  relieved  against  formerly,  178 

FIRE 

not  an  accident  entitling  to  relief,  101,  102 

FOREIGN  ADMINISTRATION, 
proceedings- in  aid,  583 

FORFEITURE.     See  Penalty. 

when  enforced  in  equity,  1319,  1320 

an  answer  to  discovery,  1494 

when  relieved  against,  in  cases  of  bonds,  89 

in  cases  of  mortgages,  89 

for  non-payment  of  rent,  1315 

in  other  cases,  1315,  1319-1325 

statutory  power,  1324a 
waiver  of,  1323,  1325,  1325o 

FRAUD,  ACTUAL  OR  POSITIVE, 

cognizable  at  law  as  well  as  in  equity,  60 

where  no  relief  at  law  or  in  equity,  61 

relief  in  equity  where  none  at  law,  193 

concurrent  jurisdiction  in  cases  of,  257-257a 
origin  of  equitable  jurisdiction,  185 

matter  of  proof  and  necessary  influence,  190 

definition  of  by  Pothier  and  civilians,  186 

never  expressly  defined  by  courts  of  equity,  186 

five  classes  enumerated  by  Lord  Hardwicke,  188 

fraud  by  assertion  of  that  which  is  false,  191-203 
may  be  by  acts  as  well  as  by  words,  192,  293 
liability  of  principal  for  fraud  of  agent,  193 
reckless  statements,  193 
extravagant  statements,  199,  202 
must  be  material,  191,  194-196 
must  be  relied  on  by  party,  197-202 
means  of  knowledge  of  party  defrauded,  191,  199 

fraud  by  concealment  of  that  which  is  true,  204-217 
duty  to  disclose,  210,  214-217,  220,  324 
duty  of  disclosure  by  purchaser,  205,  207 
rule  of  caveat  emptor,  208,  209,  212,  213 
definitions  of  concealment,  204-207 

fraudulent  appointments,  262,  265-2556 

fraudulent  dealings  by  executors  or  administrators,  422-424 

in  cases  oj  wills,  184,  238,  439,  440 

doctrine  of  civil  law,  211-213 

FRAUD,  CONSTRUCTIVE, 
defined,  258,  259 
matters  of  public  policy,  260 

marriage  brokage  contracts,  260-263 

bond  for  assistance  in  an  elopement,  264 

bond  for  exercising  influence  over  third  party,  265 


656 


INDEX; 


PEAUD,  CONSTEUCTIVE— continued, 
matters  of  public  policy — continued. 

bonds  and  transactions  in  fraud  of  marriage,  266-273 

contracts  in  fraud  of  public  rights  and  duties  ,.294 

contracts  for  sale  of  offices,  295 
contracts  to  suppress  criminal  prosecutions,  294 

contracts  of  wager,  294,  303 

confirmation,  306 

relief  where  parties  are  participes  criminis,  297-300 
fraud  on  third  parties,  237,  343,  382-391 
fraud  on  creditors,  352-371,  369,  378-381 
fraud  on  subsequent  purchasers,  352,  425,  426 

unconscionable  and  improvident  bargains,  237,  244-251,  331,  334-348 
protection  of  purchaser  for  value  without  notice,  369b,  381,  410,  436 
from  fiduciary  relationship,  parent  and  child,  309 

legal  adviser  and  client,  219,  310-313 

medical  adviser  and  patient,  314 

spiritual  adviser  and  penitent,  323 

master  and  servant,  323 

principal  and  agent,  315,  316 

guardian  and  ward,  313,  317-320 

trustee  and  beneficiary,  310,  321,  322,  1261 

in  case  of  directors,  323a 

in  case  of  promoters,  323a 

PEEIGHT 

to  be  earned,  assignment  of,  1055 


GAMING- 

contracts,  arising  from,  294 
securities  to  secure  losses  by,  303 

GENBEAL  AVEEAGB,  490,  491 

GIFTS 

by  client  to  solicitor,  310-313 
in  prejudice  of  creditors,  353,  375 

GUAEANTY, 

avoided  by  concealment  of  material  facts,  215,  383 

GUAEDIAN, 

appointment  and  removal  of,  1338-1342 

statutory  jurisdiction,  1342a 
powers  in  respect  of  ward,  1340 
dealings  with  property  of  ward,  488  note,  1366,  1357 
dealings  between,  and  ward,  in  regard  to  property,  317-320 
foreign  guardians,  jurisdiction  over,  1361b 


HEIELOOMS, 

specific  delivery  of,  709 

injunction  to  secure  preservation  of,  956 

HEIES  AND  EXPECTANTS, 

agreements  of,  to  share  estate  between  themselves,  265 
bargains  with,  334-348 

statutory  modification,  338o 

remedy  irrespective  of  age,  335 

sale  by  auction  as  evidence  of  value,  347 

confirmation  of,  345,  346 
marshalling  of  assets,  with  respect  to,  570 


INDEX-.  657 

IDIOTS,  222-230,  1362-1365o 

ILLEGALITY 

effect  on  contracts,  257a,  274-303 
relief  in  cases  of,  61,  294-304,  696-701 

ILLICIT  INTERCOUESB, 
agreement  for,  296 
relief  in  cases  of,  297,  299 

IMPLIED  TEUSTS,  1195-1295 
arising  ex  maleficio,  439,  1198 

IMPROVEMENTS 

on  lands  of  another,  relief  for,  385,  655,  1234-1238 
lien  for,  1234-1238 
civil  law  rule,  1239 

INCUMBRANCES, 

merger  on  payment  off,  486 
apportionment  of,  487 
keeping  down  interest,  488,  838 
appointment  of  a  receiver,  837,  838 
concealment  of,  212 

INFANT, 

contracts  of,  240-242a 

fraud  of,  385 

partition  by,  652,  658a 

keeping  down  interest  on  incumbrances,  488  note 

jurisdiction  in  equity  over,  1327-1365 

parental  rights  and  duties,  1341-1342a 

civil  law  as  to,  1350 
appointment  and  removal  of  guardian,  1338-1342 

statutory  jurisdiction,  1342a 
jurisdiction  over  person  of,  1340,  1841 

over  property  of,  1341,  1356,  1357 

over  foreign  infants,  1361a 
maintenance  of,  1354-1355o 

apportionment  of,  479 
ward  of  court,  1352-1355,  1359-1361 

INJUNCTION, 

civil  law  as  to,  866-870 

nature  of,  861-865,  869,  871,  872 

discretion  to  grant  or  refuse,  862,  863,  925,  926 

in  cases  of  foreign  suits,  899 

to  restrain  alienation  of  property,  generallyj  843,  844,  905-908,  953-957 

pendente  lite,  907,  908,  953 
to  prevent  waste,  909-919 
in  cases  of  nuisances,  920-927 
to  prevent  infringements  of  copyright,  patents  and  trade  marks,  930-942, 

950,  951 
to  prevent  improper  use  of  another's  name,  951 
to  prevent  publication  of  private  MSS.,  letters,  &c.,  943-949 
to  prevent  disclosure  of  trade  secrets,  952 
to  protect  title  of  purchaser,  951b,  958 
to  restrain  the  publication  of  a  Jibel,  961d 

to  restrain  the  commission  of  torts  out  of  the  jurisdiction,  951c 
to  restrain  a  breach  of  contract,  667,  668,  958,  958o 
by  way  of  execution,  959 
necessity  for  "clean  hands,"  951a 
civil  law  as  to,  865-868 

E.J.  42 


658  INDEX. 

INSANITY 
defined,  230 
of  partner,  cause  for  dissolution,  673,  673a 

INSPECTION 

of  deeds  and  instruments,  704,  704a 

INSUBANCE, 

mistake  in  policy,  158 
duty  of  disclosure,  216 

INTEEEST 

on  mortgages,  apportionment  of,  479 
keeping  down,  487,  488 

INTERPLEADER 
at  law,  801-805 

jurisdiction  in  equity,  806-824 
affidavit  of  no  collusion,  809 
present  practice,  824o 

INTOXICATION, 
definition  of,  230 
equitable  relief  in  cases  of,  230-232 

INVENTIONS, 

patented,  infringement  of,  930-934 

INVENTORY 

in  ecclesiastical  courts,  537 
in  favour  of  legatee,  604 


JOINT  TENANTS, 

accounts  between,  in  equity,  466 
contribution  between,  505 
lien  for  expenditure,  1234-1237 

JOINTRESS, 

equity  of,  1504 

discovery  of  title,  707,  1504 

when  entitled  to  lien  on  land,  1249 

JUDGMENT, 

at  law,  form  of,  26,  27,  76 
when  a  lien,  1216 
marshalling  securities,  6336 
fraud  in  obtaining,  effect  of,  252 


LACHES.    See  Limitations,  Statutes  op. 
discountenanced  in  equity,  64a,  629 
effect  of,  in  cases  of  specific  performance,  771,  776 
in  cases  of  suretyship,  324-326 

LAND, 

equitable  doctrine  of  conversion,  790-793 
verbal  contract  respecting,  752-768 
charge  of  debts  and  legacies  on,  552-555 

LAPSE  OF  TIME, 

how  it  affects  equitable  rights,  64o,  326,  529,  771,  776 


INDEX.  659 

LEGACY, 

conditional  on  claim,  93 

fraud  in  prevention  of  gift,  256 

gift  or  revocation  of  under  mistake,  179 

assent  of  executor  to,  when  required,  539,  540,  591 

jurisdiction  of  ecclesiastical  courts,  536-639,  590 

of  common  lavr  courts,  539,  591 

of  court  of  chancery,  592-608 
securing  assets  for  payment  of,  541,  603 
securing  settled  legacy,  604 
marshalling  of  assets,  565-570,  573,  574 

in  case  of  charitable  legacies,  569,  1180 
construction  of,  1067-1073 
election  in  cases  of,  1076,  1077,  1080 
satisfaction  or  constructive  ademption  of,  1109-1123 
refunding,  503,  1251 

LETTEES, 

injunction  to  prevent  publication  of,  944-949 

LIEN, 

definitions  of,  506,  1215,  1216 

when  lost  at  law,  1216 

equitable  jurisdiction  in  cases  of,  506,  1217 

of  vendor,  for  purchase  money,  506,  1217-1233 

applies  to  equitable  interests  in  settled  personality,  1222 

in  favour  of  his  personal  representatives,  1227 

against  persons  claiming  under  vendee,  1228,  1229,  1231-1233 

waiver  of,  1224-1226 
of  purchaser,  506,  1234,  1236,  1237 
by  deposit  of  title  deeds,  1020 
by  deposit  of  money  for  special  circumstances,  1231 
on  land,  by  covenant,  1231,  1249 
in  favour  of  jointress,  1249 
of  partners,  1243 
of  part-owners  of  ship,  1242 
contribution  between  purchasers,  484 
of  joint  creditor  on  partnership  assets,  1253 
of  creditor  of  one  partner  on  partnership  assets,  677 
of  creditors  under  charge  of  debts,  1244-1247 
for  repairs  and  improvements,  1234-1239 
for  work  on  personal  property,  506,  1240 
enforced  by  sale  in  equity,  1216a 

LIMITATIONS,  STATUTES  OP, 

in  equity,  in  the  case  of  legal  demands,  529 
in  the  case  of  equitable  demands,  64o,  629 
in  the  case  of  mortgages,  1228a,  1228!) 

MS  PENDENS 

as  constructive  notice,  406-407 

registration  of,  406 

alienations  pendente  lite,  injunction  restraining,  906-908 

LOST  INSTEUMENTS, 

equitable  relief,  in  the  case  of  lost  deeds  and  bonds,  81-84,  87 
in  the  case  of  negotiable  securities,  85,  86 
proof  of  loB8  esaential,  88 


660  INDEX. 

LUNACY, 

jurisdiction  of  Court  of  Chancery,  1364,  1364a 

of  chancellor,  1335,  1386,  1362-1365 

of  lords  justices,  1362,  1364 

over  foreign  lunatics,  1365a 
procedure  on  inquisition,  1864,  1365 
definition  of,  230 
contracts  of  lunatics,  222-230 

of  mentally  deficient,  222,  284,  237,  238 

doctrine  of  civil  and  Scottish  law,  239  note 
maintenance  of  lunatics,  1364,  1364a 


MAINTENANCE  AND  CHAMPERTY, 
defined,  1048-1066 
effecfon  contracts  and  assignments,  294,  1048,  1049 

MAINTENANCE 

of  infant,  1854-1865o 

apportionment  in  cases  of,  479 
of  lunatic,  1364,  1364a 
of  wife,  1421-1426 

MAERIAGE, 

consent  to,  provisions  requiring,  validity  and  effect,  257,  258 
contracts  and  conditions  in  restraint  of,  274-290 

in  restraint  of  second  marriage,  285 
marriage  brokage  contracts,  260-263 
assisting,  in  elopement ,  264 
promoting,  rewards  for,  266 
separation,  conditions  for  promoting,  291 

separation  deeds,  1427 

MARRIAGE  SETTLEMENT  AND  ARTICLES, 

fraudulent  agreements  to  defeat  marriage  settlements,  267-273 
executed  and  executory  provisions,  construction  of,  983-985 
marriage  articles,  who  may  enforce,  986,  987 
what  may  be  settled,  terms  of  years  and  personalty,  968,  990 

estates  pur  autre  vie,  989,  990 
trustees  to  preserve  contingent  remainders,  991-996o 
marriage  settlement,  reforming  by  articles,  159,  160 

MARRIED  WOMEN, 

rights  and  liabilities  at  law  and  in  equity,  1366-1370 

her  separate  property  in  equity,  1872,  1378-1380,  1391-1398 

restraint  on  anticipation,  243,  1429o 

dispositions  of.  1391-1897 

in  favour  of  husband,  1395,  1396 
contracts  of  in  equity,  1872,  1378-1880,  1391,  1392 

separate  trading,  1385-1387 
frauds  of,  243,  385 
defective  execution  of  power  by,  97 
gifts  from  husband  to  wife,  1374-1377 
maintenance  or  alimony  in  equity,  1421-1426 
separation  deeds,  their  validity,  1427,  1428 
equity  to  a  settlement,  1402-1420 

in  the  case  of  foreigners,  1409 

who  may  assert,  1417 

against  whom,  1410-1414 

when  waived  or  lost,  1416-1419a 
Married  Women's  Property,  Acts,  1429o 


INDEX.  661 

MAESHALLING  OF  ASSETS 
in  administration,  550-568 
in  favour  of  charities,  569,  1180 

MAESHALLING  OP  SECUEITIBS, 

concurrent  jurisdiction  in  cases  of,  633-645 

cannot  be  invoked  by  the  debtor,  640 

there  must  be  a  common  debtor,  642 

depends  upon  the  equities  of  the  parties,  642-645 

doctrine  of  the  civil  law  of  substitution  and  cession,  635-637,  641 

MASTEE  OP  THE  EOLLS, 
jurisdiction  of,  43  note 

MAXIMS, 

equity  follows  the  law,  64-64!) ,  243,  553 
equity  acts  by  analogy  to  the  law,  64o,  812,  813 
where  there  is  equal  equity,  the  law  prevails,  64c 

the  first  in  point  of  time  prevails,  64d 
equality  is  equity,  64/,  555,  558 

equity  looks  upon  that  as  done  which  ought  to  be  done,  64^,  790-793 
who  seeks  equity  must  do  equity ,  64e 

who  seeks  equity  must  come  with  clean  hands,  267o,  951ffl 
in  pari  delicto,  potior  est  conditio  defendentis ,  61,  257o,  297,  298,  422 

MISTAKE, 

concurrent  jurisdiction  in  cases  of,  110-179 

defined,  110 

of  law,  when  relieved  against,  lll-138a 

in  cases  of  compromise,  117-122,  129-133,  135 
of  fact,  140-153O 

must  be  material,  141 

presumption  of,  162-164 

evidence,  157-161 

effect  of  the  Statute  of  Frauds,  158 
of  title,  124,  124a,  142,  143 
in  expression,  168 
unilateral,  duty  of  disclosure,  145-151 

errors  in  accounts,  525a,  526 
in  written  instruments,  152-161 

presumption  of  mistake,  162-164  , 

relief  in  equity,  against  parties  and  privies,  165 

against  purchaser  for  value,  139,  165 
specific  performance  of  rectified  instrument,  156,  161 
expenditure  on  property  of  another  by,  385 
defective  fines  and  recoveries,  178 
in  wills,  179 

MODUS 

in  lieu  of  tithes,  479,  519 

MONEY, 

no  equitable  relief  for  bare  money  claim,  794,  1255 

deemed  land,  and  land  money,  790 

payment  into  court,  809,  824,  827,  828,  839-841 

MOETGAGB, 

what  property  may  be  mortgaged,  1021 

of  land,  a  pledge  in  equity,  1013-10166 

equity  of  redemption,  nature  of,  1013-1017,  1019,  1020,  1023 
estate  rights  and  liabilities  of  mortgagee,  1016-1016!) 


662  INDEX. 

MORTGAGE— comtjnued. 

of  land,  a  pledge  in  equity — continued. 

form  of,  1018,  1019 

equitable  by  deposit  of  deeds,  1020 

power  to  make,  1022-1027 

to  secure  further  advances,  1020 
of  personalty,  1021,  1030-1035a 

priority  by  notice,  1035a,  1047,  1047a 
marshalling  assets  and  securities,  559-568,  633-645,  1028 
tacking,  412-421,  1004,  1012-10165,  1034 

in  Roman  law,  1005-1011 
redemption,  1023 

within  what  time,  1028a 
foreclosure,  1024-1029 

within  what  time,  1028!),  1031 
sale,  when  decreed,  1023b,  1025,  1026,  1027o 

power  of,  1027 
merger  on  payment  off,  486 
contribution  to  discharge,  483,  484,  487 
apportionment  of  interest,  479,  487,  488 
concealment  of,  208,  393 

MORTMAIN,  STATUTES  OF,  1193 


NE  EXEAT  REGNO, 

origin  and  nature  of,  1464-1467 
in  what  cases  granted,  1468-1475 
in  the  case  of  foreigners,  1475 
modern  statutory  practice,  1475o 

NOTES,  LOST, 

equitable  relief  in  cases  of,  85,  86 

NOTICE 

statutory  definition  of,  to  bind  purchaser,  4006 

actual,  constructive  or  imputed,  399-400a,  408 

effect  of  Registry  Acts  as,  397,  398,  401,  402 

effect  of  Us  pendens,  405,  406,  407 

time  at  which  notice  must  be  received,  400c 

protection  of  purchaser  with  notice,  from  a  purchaser  without  notice,  409-411 

conveyance,  from  a  trustee,  395 

with  actual  notice  of  adverse  rights,  396,  400a,  400b 
with  constructive  notice,  399,  400,  400a,  400b 
with  imputed  notice,  400a,  400b,  408 

in  cases  of  tacking,  412-421 

in  dealings  with  trustees,  395,  422,  423 

as  affecting  priority  of  equitable  assignments,  1035a,  1047,  1047a 

NUISANCE, 

remedy  at  law,  924,  925 
remedy  in   equity,   921-927 
public,   921-924,   926a 
private,  925-927 

OBLIGATIONS 

in   Roman  law,   2 

OFFICES, 

sale  of,  illegal,  295 


INDEX.  663 


PAEBNT  AND  CHILD, 

guardianship  of  infant  child,  1341-1342(1 
purchase  by  parent  in  name  of  child,  1202 
gift  from  child  to  parent,  309 
contracts  between,  309 

PABOL  EVIDENCE, 

admissibility  to  vary  written  instruments,  152,  153,  161 

in  eases  of  specific  performance,  161,  169,  770 

in  cases  of  mistake,  153 

in  cases  of  fraud,  153 

to  rebut  presumptions,  1102,  1202 

rule  independent  of  Statute  of  Frauds,  158,  161 
to  show  absolute  conveyance  was  a  mortgage,  1018 
to  interpret  wills,  179 

PARTICEPS  CRIMINIS, 

relief  where  plaintiff  is,  298-306,  422 

PAETITION, 

concurrent  jurisdiction  in  cases  of,  646-658 

common  law  jurisdiction,  646,  647,  650,  652,  654,  655 

abolished  by  statute,  650 
compensation  for  owelty  or  improvements,  654-656 
amended  statutory  procedure,  657,  658o 
civil  law  as  to,  648 

PARTNEESHIP 

common  law  remedies  between  partners,  661-665 

account,  662-664 

contribution,  664,  681 

to  furnish  capital,  665 
concurrent  jurisdiction  in  equity,  659-683 

where  there  is  an  arbitration  clause,  670 

in  cases  of  fraud,  220,  681 
specific  performance  of  contract  to  enter  into,  670,  722 

of  other  contracts  between  partners,  667,  677 
judicial  dissolution,  673,  673o 

for  insanity  or  incapacity,  673,  673o 

for  misconduct,  673 

where  the  business  can  only  be  carried  on  at  a  loss,  673 

where  object  impracticable,  674 

where  just  or  convenient,  673 

receiver,  672 
injunction  to  restrain  wrongful  acts  of  partner,  666-669 
accounts  between,  671 

penal  orders,  468 
premium,  apportionment  of,  89,  472 
lien  of  partners,  674,  675,  1253 
contract  of  partners,  whether  joint  or  several,  676 
rights  of  joint  creditors,  676,  676 

of  separate  creditors,  677 
firms  with  common  members,  678,  680 
illustrations  from  Eoman  law  and  other  systems,  682 

PAET  OWNEES 
account ,  466 
contribution,  505 
lien,  1242 

PAET  PEEFOEMANCE,  759-766 


664  INDEX. 

PATENTS  FOE  INVENTIONS, 

infringement,  injunction  to  restrain,  930-936 

PEACE,  BILL  OF, 

nature  of  and  remedy,  8S2-860 

PENALTIES  AND  FOEFEITUEES, 

distinction  between  penalty  and  forfeiture,  1319,  1320 
penalties,  jurisdiction  to  relieve  against,  89,  1301-1318 
forfeitures,  jurisdiction  to  relieve  against,  1321-1324 

statutory  relief  against,  1324o,  1324b 
waiver  of,  1325,  1325(i 
statutory  penalties  and  forfeitures,  1326 
discovery  in  cases  of,  1494,  1509 

PBEPBTUATING  TESTIMONY, 
bill  for,  1505-1512 

for  whom,  1509,  1510 
against  purchaser,  1510 
form  of  decree,  1512 
publication  of  testimony,  1516 

PEESONAL  ESTATE 

primary  fund  for  payment  of  debts,  571-577 

PLEDGE, 

of  assets  by  personal  representative,  580,  581 
of  personal  property,  account  in  cases  of,  506 

redemption,  1030-1035 

tacking,  1035o 

POLICY,  PUBLIC, 

in  cases  of  constructive  fraud,  260,  -807 

in  cases  of  family  arrangements,  121,  129,  131,  132 

POETION, 

power  to  raise,  construction  of,  1061-1065 
double  portions,  doctrine  of,  1099,  1100,  1109-1114 
satisfaction  of,  1109-1114 
election  in  cases  of,  1074-1096 

POSSESSION, 

delivery  of,  injunction  for,  959 

POST-NUPTIAL  SETTLEMENT, 
validity  of,  372-374 

POST-OBIT  BONDS, 

definition  of,  342,  343 

relief  against,  343,  344 

their  validity  when  sold  by  auction,  347 

POWEE, 

when  fiduciary,  1061 
when  personal,  1060-1062 

survivorship  of,  1061,  1062 
to  sell,  by  implication,  1060,  1063-1064o 
execution  of,  how  affected  by  mistake,  95,  112,  160-376 

defective,  95,  169-179 

when  aided,  94-98,  169,  170-176,  177 
to  raise  portions,  1064-1065a 

fraudulent  and  illusory  appointments,  252,  255-255!* 
non-execution,  94,  169,  170 


INDEX.  (i()5 


PRAETOR, 

his  equitable  jurisdiction  in  Roman  law,  5 
value  of  precedents  in  his  court,  18 

PRECATORY  TRUSTS 
defined,  1068-1074 

PREFERENCES, 

in  the  administration  of  estates,  553-558,  571-574a 
in  partnership  cases,  675,  676 
in  the  cases  of  bargains  with  creditors,  378,  379 
priority  by  notice,  1047,  1047 o 

PRINCIPAL  AND  AGENT, 

fiduciary  relation  between,  315,  316,  316a 
duty  of  agent  to  keep  accounts,  468 

to  keep  his  principal's  property  separate,  468,  623 
bill  for  account,  462-469 

discovery  in  cases  of  account,  450 

PRINCIPAL  AND  SURETY, 

♦he  contract,  492,  498,  502a 

fiduciary  relation  between,  215,  324-327 

duty  of  disclosure,  215,  324 

right  of  surety,  to  compel  principal  to  pay  debt,  327 

to  an  assignment  of  securities,  327,  499-499c,  502,  638 
to  be  subrogated  to  the  creditor,  327,  502 
to  contribution  from  co-surety,  492,  493 
by  bill  quia  timet,  730,  849 
in  Roman  law,  494,  500,  501 

discharge  of  surety,  by  act  of  creditor,  324-326,  498o 

PRIORITY.    See  MORTGAGE 

in  cases  of  administration,  553-557 

by  notice,  1047,  1047o 

adjustment  of,  in  cases  of  incumbrances,  838 

PRIVILEGED  COMMUNICATIONS.     See  DISCOVERY 
what  are,  1496 

PRODUCTION  OP  BOOKS  AND  PAPERS, 
in  cases  of  account,  450 
in  cases  of  discovery,  1485 

PROMOTER 
defined,  323a 

PUBLIC  POLICY, 

in  cases  of  constructive  fraud,  260,  307 

in  cases  of  family  arrangements  121,  129,  131,  132 

PUBLICATION  OP  MANUSCRIPTS,  LETTERS,  &c., 
injunction  to  prevent,  943-951 

PUFFING, 

at  auctions,  293 

on  sale  of  commodities,  201 


666 


INDKX. 


PURCHASE.    See  SALE  OP  LAND, 
by  trustee,  321,  322,  1211 

by  person  in  a  fiduciary  relation,  307-320,  322,  323,  1211o 
in  the  name  of  a  child,  1202-1205 

of  a  wife,  1204 

of  a  third  person,  1196-1202 
joint  purchases,  1206,  1207,  1234,  1236 
by  partners,  1207,  1207a 
from  executor,  422,  579-581 

PUECHASEE, 

liability  for  application  of  purchase  money,  in  cases  of  personal  property, 
1128,  1129 

in  cases  of  real  estate,  1124-1127,  1130-1134 
without  notice,  protection  of,  generally,  64c,  169,  176,  381,  409-411,  630 

in  cases  of  accident,  108 

in  cases  of  discovery,  1502-1504,  1570 

in  cases  of  mistake,  139,  165 

in  cases  of  execution  of  powers,  169 

in  cases  of  legal  title,  630 

exception  of  lis  pendens,  406 

exception  of  dower,  630 

PUEPRESTUEES, 

remedy  in  equity,  921-924 


QUIA  TIMET,  BILL, 

general  principles  governing  relief,  701,  710,  730,  825-851 

general  nature  of,  826-828 

in  cases  of  suretyship,  849 

as  to  present  interests,  827,  828,  844 

as  to  future  interests,  827,  828,  843-848 

to  prevent  waste,  &c.,  pending  suit,  851 

by  requiring  payment  or  transfer  into  court,  827,  828,  839,  842 

by  requiring  security,  845,  846 

by  appointment  of  receiver,  827-832,  834 

against  terre-tenant,  835 

against  executors  or  trustees,  827,  828,  836 

in  partnership  cases,  672 

where  there  are  incumbrances,  830,  837 

effect  of  appointment,  829,  831,  833,  833a 


RECBIVEE, 

when  and  how  appointed,  827-838 

aaginst  terre-tenant,  835 

against  executors  and  trustees,  827,  828,  836 

in  partnership  cases,  672 

where  there  are  incumbrances,  830,  837 
effect  of  appointment,  829,  831,  833,  833a 

EECOMMENDATION,  WORDS  OF, 
when  they  create  a  trust,  1068-1074 

EEFORMING  DOCUMENTS.    See  MISTAKE, 
contracts,  134,  153,  153o 
deeds,  169,  160,  7066 

REGISTEATION, 
notice  by,  401,  402 
object  and  policy  of  Eegistry  Acts,  397,  398,  401,  402 


INDEX.  667 

BELEASB, 

effect  of  mistake,  112,  145 

effect  of  concealment  of  facts,  217 

by  partner  in  fraud  of  co-partners,  681 

EEMAINDEBMAN.    See  EEVEESIONEES, 
when  relieved  against  dealings,  334,  340 
apportionment  of  incumbrances  between,  and  tenants  for  life;  487 

EENTS  AND  PEOPITS, 
apportionment  of,  475-479 
account  of,  jurisdiction  to  grant,  508-514 

from  a  tenant  by  elegit,  510 

from  intruder,  511 

from  "■  trustee,  512 

in  cases  of  dower,  512,  625 

in  case  of  heir  or  devisee,  512 

in  cases  of  partition,  655 

in  cases  of  tort,  513 
power  to  raise  sum  in  gross  out  of  1064,  1064a 

EEPAIBS 

on  estates,  when  allowed  for,  1235-1239 
lien  for,  1235-1239 


EBSCISSION  OP  DEEDS  AND  INSTEUMENTS, 
when  decreed,  692-705 

distinction  between  void  and  voidable  instruments,  694-700 
in  cases  of  fraud,  695 
effect  of  public  policy,  695 
against  conscience,  695 
where  object  satisfied,  701 
terms  upon  which  decreed,  696,  707,  997 

EESTEAINT  OF  MAEEIAGE, 

contracts  and  conditions  when  void  or  not,  274-290 

EESTEAINT  OP  TEADE, 
contracts  for,  292 


EESULTING  TEUST, 

from  conveyance  without  consideration,  1197,  1198 
from  the  acts  and  transactions  of  the  parties,  1195,  1196 
from  failure  of  object  of  trust,  1196a,  1200 
from  payment  of  consideration,  1201-1206 
when  fraud  on  a  statute,  1201a 


EEVEESIONEES, 

where  relieved  against  fraud  and  catching  bargains,  334-340 

age  immaterial,  335 

doctrine  of  Eoman  law  as  to,  341 


EEVOCATION 

of  voluntary  trust,  when  effective,  972,  1036a,  1045,  1196 


668  IKDEXL 

SALE  OP  LAND.    See  SPECIFIC  PEBFOEMANCE, 
contract  for,  constitutes  fiduciary  relation,  789,  790 
vendor's  lien,  1217-1233 

in  whose  favour  it  exists,  1227 

when  waived  or  lost,  1224-1226 

against  whom  it  exists,  1227,  1228,  1233 
specific  performance  of  contract  for,  712-793(1 
to  satisfy  liens,  1217,  1218 
trusts  or  powers  for,  1060-1062 

to  raise  sum  in  gross  out  of  rents  and  profits,  1064,  1064a 

when  implied  in  power  to  mortgage,  1064a 

SATISFACTION, 
what  it  is,  1099 

distinction  between,  and  performance,  1106,  1107 
matter  of  rebuttable  presumption,  1100-1102 
satisfaction  of  money  by  land,  1102,  1103 

of  land  by  money,  1102,  1103 

of  land  by  land  of  another  tenure,  1103 

where  gifts  are  ejusdem  generis,  1104,  1105 

of  portions  secured  by  settlement,  1109 

of  portions  secured  by  will,  1109-1115 

of  legacies,  when,  1110-1122 

of  debts  by  legacies  to  creditors,  when,  1109,  1119  1123 
the  civil  and  other  laws  respecting,  1108 

SECUEXTIES, 

marshalling  and  priorities  of,  633-645 

SBPAEATE  ESTATE 

of  wife,  1378-1381,  1384-1398,  14290 

SEPAEATION 

deeds  in  favour  of,  validity,  291 
of  courts  of  common  law  and  equity,  34 
abolished,  84 

SBQUESTEATION, 

effect  of,  in  equity,  833 

SET-OFF 

at  law,  1483-1435,  1487 
in  equity,  1430-14376 
where  there  are  cross  demands,  1436a 
of  mutual  debts  and  credits,  1431 
of  joint  and  separate  debts,  1437 
of  equitable  debts,  1436,  1437 
how  affected  by  statute,  1444a 
need  not  be  specially  claimed,  1440 
in  the  civil  law,  1438-1444 

SETTLED  ACCOUNT, 

when  it  will  be  opened,  523-529 

SETTLEMENT, 

injunction  against  assertion  of  a  title  to  its  prejudice,  64 

underhand  agreement  to  defent,  avoided  in  equity,  267,  268 

mistake  in,  when  rectified,  159,  160 

in  fraud  of  marital  rights,  273 

post-nuptial,  when  valid  or  not,  372-374 

voluntary,  7066 

equity  of  wife  to  a,  1402-1419o,  1424 


INDEX.  (i69 

SOLICITOR  AND  CLIENT, 

their  peculiar  fiduciary  relation,  310-313 

relief  in  cases  of  concealment  by  solicitor  from  his  client,  218,  219 

plea  of  ignorance  by  solicitor,  218,  219 
benefits  secured  by  solicitor  from  client,  136,  310-313 

distinction  between  case  of  solicitor  and  trustee,  311,  313 

■when  relation  is  dissolved,  313 
account  between,  135,  523 

SPECIALTY  CREDITOE, 

marshalling  of  assets  with  respect  to,  562-565a,-  571 

SPECIFIC  DELIVERY  OP  CHATTELS, 
when  decreed,  707-711,  717 

SPECIFIC  PEEFOEMANCE 
compelled  in  equity,  30,  161 
antiquity  of  jurisdiction,  37 
general  grounds  of  jurisdiction,  717-720,  788-742 
how  far  discretionary,  742,  747,  751 
effect  of  fraud,  accident  or  mistake,  769,  770,  781,  786 

of  illegality,  787 
of  contracts,  relating  to  property,  712-716,  729,  737,  737o,  743- 

relating  to  land  in  foreign  countries,  743,  744 

to  build,  716,  725,  778o 

to  repair,  722 

of  sale  of  land,  717,  743-751a 

between  landlord  and  tenant,  710,  720-722,  729 

of  sale  of  chattels,  708,  719 

of  sale  of  stocks  and  shares,  717,  724 

of  sale  of  goodwill  and  trade  secret,  722 

of  sale  of  annuity,  722 

of  sale  of  debts,  722 

to  purchase  and  settle  lands,  729 

to  enter  into  partnership,  666-670,  710,  722 

to  refer  to  arbitration,  1457 

performance  secured  by  penalty,  715,  751 

when  voluntary,  787,  793o 

when  doubtful,  762,  767 
of  awards,  1458 
of  compromise,  785 
of  covenants  of  indemnity,  730,  785 
in  whose  favour,  723,  736,  788 

sureties,  730,  749 
against  privies  and  representatives,  783,  788 
against  assignees,  and  purchasers  with  notice,  784,  789 
mutuality  of  remedy,  723,  787,  789,  790,  958(i 
distinction  between  vendor  and  purchaser  seeking,  769,  770 
where  the  plaintiff  is  in  default,  736,  737,  772-775,  777,  780 

specific  performance  with  compensation,  794-796b 

effect  of  laches,  707,  749,  750,  771,  776 
where  purchaser  may  have  specific  performance  pro  tanto,  779 
effect  of  Statute  of  Frauds,  752-782 

doctrine  of  part  performance,  759-766 

SPOLIATION  OF  DEEDS, 
fraud  by,  252,  254 

STATED  ACCOUNT, 
what  is,  523,  524,  526 


670  INDEX. 

STATUTE  OF  PBAUDS 

referred  to,  158,  330,  374,  752-782,  972,  1198 

STATUTES  OF  LIMITATIONS 

referred  to,  64a,  529,  1228a,  12286 

SUBPCENA, 

invention  of  this  writ,  38 

SUBROGATION 

in  Boman  law,  567,  635 

SUBSTITUTION 

in  Soman  law,  567,  635 

of  sureties  to  creditors,  327,  502 

adopted  froto  civil  law,  567,  635-637 

to  a  lien,  of  legatees  and  assignees,  1227-1229 

SUPPLICAVIT, 

when  grantable,  1476,  1477 

SUPPRESSION  OF  DEEDS, 
frauds  by,  252 

SURCHARGE  AND  FALSIFY, 
meaning  of  these  terms,  525 

SURETY.    See  PRINCIPAL  AND  SURETY 

SURPRISE, 

its  meaning  as  used  in  courts  of  equity,  119,  120,  251 

when  consent  obtained  by,  222 

when  mixed  up  with  mistake,  117,  251 


TACKING, 

Lord  Hardwicke's  account  of  its  origin,  415 

unknown  in  Roman  law,  420 

definition  of,  412 

its  hardship,  413 

grounds  on  which  it  is  supported,  414-416,  42(1 

confined  to  purchasers  for  value  without  notice,  416,  421 
money  must  be  lent  on  the  credit  of  the  land,  416-418 
both  securities  must  be  held  in  same  right,  418,  419 
tacking  against  heir,  418,  419 

in  mortgages  of  personal  property,  1034,  1035 

TEEMS  OF  YEARS, 

on  special  trusts,  998-999a 

nature  of,  998,  999 

how  they  follow  the  inheritance,  998,  999 

merger  of  in  inheritance,  999o 

TESTIMONY,  BILL  TO  PERPETUATE, 
when  it  lies,  1505-1513 

against  a  purchaser,  1610 
title  of  plaintiff  to  maintain,  1506,  1511 

where  immediate  proceedings  may  be  instituted,  1508 
practice  on,  1512,  1516 
objections  to  such  testimony,  1507 


INDEX.  671 


TESTIMONY  DE  BENE  ESSE, 
when  it  lies,  1513-1516 

when  witnesses  abroad,  1514,  1515 

aged  and  infirm  witnesses,  1514 

a  single  witness,  1514,  1514o 
present  practice,  1514a 
publication  of  depositions,  1516 
general  admissibility  of  evidence,  1516a 

TIMBEE, 

tortious  cutting  down,  equitable  remedy,  1517-1618o 

TIME, 

when  essential,  in  contracts,  771,  776-780 

laches,  effect  of  in  equity,  64a,  529,  707,  749,  750,  771,  776 

TITHES  AND  MODUSES, 

ancient  jurisdiction  of  court  of  exchequer  over,  519 
jurisdiction  of  chancery  over,  453,  519,  618 

now  abolished,  519 
apportionment  of,  479 

TITLE, 

ignorance  of,  effect  on  contract,  120-130 

TOETS, 

of  agents,  chargeable  in  equity,  462,  467,  468 
accounts  growing  out  of,  460,  511,  515-617 

TEADB,  EBSTEAINT  OP, 
contracts  in,  292 

TBADB  MAEK, 

fraudulent  user,  951 

TEADE  SBCEET, 

restraining  publication  of,  952 

TEESPASS, 

foundation  of  equity  jurisdiction,  48 
injunction  against,  511 

TEUST, 

history  and  nature  of,  960-982 
entertained  in  equity,  29 

not  sole  foundation  of  equity  jurisdiction,  37,  60,  76,  634 
no  jurisdiction  in  ecclesiastical  courts  to  enforce,  536-541 
equitable  jurisdiction  when  exclusive,  29,  60,  534,  535 
foreign,  when  enforced  here,  1290-1295,  1184-1186 
incidents  of  equitable  estates,  64o,  64b,  974,  975 
classification  of  trusts,  as  express,  980,  981 
as  implied  or  constructive,  1195-1295 
as  executory  and  executed,  64b,  974,  983-985 
voluntary  and  for  value,  973,  986,  987 
resulting  trust,  1183,  1196-1209 
how  created,  by  express  declaration,  980,  981,  983-985 
by  parol,  972,  1041,  1045 
by  precatory  words,  1068-1074 
by  conveyance  without  consideration,  1197,  1200 
by  purchase  in  name  of  third  party,  1201-1207o 
by  joint  purchase  or  investment,  1206 
in  partnership  cases,  1207,  1207o 


672  INDEX, 

TB,V  ST— continued. 

how  created,  in  the  case  of  powers,  98,  1061 

in  the  case  of  charities,  1165-1170 

by  vague  and  indefinite  expressions,  1073,  1156-1157,  1183 

by  purchase  from  trustee,  533,  1257,  1264 

by  voluntary  assignment  from  trustee,  533 

by  purchase  by  agent  or  person  in  a  fiduciary  position,  308-320,  323, 
323o,  1211a 

failure  to  appoint  a  trustee,  1059,  1060 
the  trustee,  powers,  rights  and  duties  of,  977-979,  1267-1269 

duty  of  provident  management,  1275,  1276 

preservation  of  trust  funds,  1269,  1270 

deposit  of  money  with  bankers,  1269,  1270 

duty  of  trustees  to  preserve  contingent  remainders,  991-996a 

liability  for  improper  investment,  1271-1274 

when  chargeable  with  interest,  1277,  1278 

liability  for  wilful  default,  1284b 

beneficial  dealings  affecting  trust  estate,  322,  1211,  1263,  1264,  1277 

liability  for  acts  and  defaults  of  co-trustee,  1280-1284o,  1284c 

dealings  between,  and  beneficiary,  310,  321,  322,  1261 

compensation  for  time  and  trouble,  322,  1268 

statutory  protection  of,  975,  1272 

duty  to  account,  465 

removal  of,  1287-1289 

appointment  of  new  trustees,  1062,  1287 

failure  of  trustee,  1059-1062 

failure  of  trust,  1183,. 1196b,  1208 

liability  of  purchaser  from,  533,  1124-1135a,  1257,  1264 
the  beneficiary,  objection  to  expression  cestui  que  trust,  321  note 

right  to  conveyance  on  becoming  absolutely  entitled,  979 

option  on  improper  investment  to  take  interest  or  income,  1262 
for  creditors,  when  revocable,  972,  1045,  1196 

TURPITUDE, 

contracts  growing  out  of,  296-301 

UNDUE  INFLUENCE, 

contracts  voidable  for,  234-239 

USES, 

administration  of,  as  foundation  of  jurisdiction  of  Court  of  Chancery,  40, 

48,  49 
charitable,  jurisdiction  over,  1142-1155 

USUEY, 

equitable  remedy  upon  usurious  contracts,  64e,  301,  302 


VENDOE.    See  SALE  OP  LAND;  SPBCrFIC  PERFOEMANCE 

VOLUNTEERS, 

not  generally  assisted  in  courts  of  equity,  176,  706a,  706b,  787,  793«,  973 

987 
under  voluntary  settlements,  352-371,  374 
purchasers  from,  425,  426 

in  cases  of  defective  execution  of  powers,  95,  176 
in  the  case  of  creditor's  trust  deeds,  972,  1045,  1196 


WAGEE, 

contracts  of,  when  void,  294,  303 


INDEX.  673 

WARD, 

dealings  of,  with  guardian,  317-320 

tenant  in  tail,  keeping  down  interest,  488  note 

jurisdiction  to  appoint  and  remove  a  guardian,  1331,  1337-1341o 

ward  of  court,  1352,  1353 

maintenance  of,  1354-1855 

marriage  of,  1358-1361 
maintenance  of,  1354-13556 
property  of,  management  of,  1856,  1357 

WASTE, 

remedy  at  law,  516,  517,  909-911 
remedy  in  equity,  515-518a,  909-918 

early  exercise  of  jurisdiction,  20 

against  real  or  personal  representative,  515,  516 
by  executors  or  administrators,  579-681 
by  husband  tort  feasor  of  wife  executrix,  582 

WEAKNESS,  MENTAL, 
relief  in  cases  of,  234-239 

WIDOW, 

conditions  restraining  re-marriage,  285 
marshalling  of  assets  in  favour  of,  568 

WIDOWEE, 

conditions  restraining  re-marriage,  285 

WILL, 

how  construed,  64b,  602,  974,  1065,  1065a,  X067 

mistake  in  construing,  124,  126,  127 

mistakes  in,  179 

cancelled  by  mistake,  99 

fraudulently  obtained,  184,  238,  440 

fraudulently  suppressed,  254 

power  to  sell,  1060-1063 

power  to  raise  money,  1064,  1064a 

aiding  defective  execution  of  power  by,  97,  178,  174 

election  between  claims  under,  1075-1098 

satisfaction  as  applied  to,  1099-1123o 

description  of  persons  to  take  under,  179,  974,  1066 

bill  to  establish,  1445-14496 

WITNESSES, 

not  proper  parties  to  discovery,  1499 
perpetuating  testimony  of,  1505-1512 
examination  de  bene  esse,  1513-1515 

WOEDS, 

different  construction  of,  as  to  real  and  personal  estate,  602,  1667 

description  of  property,  1073 

precatory,  where  establishing  a  trust,  1068-1074 

conferring  power,  1060-1065 

WRITTEN  INSTRUMENTS, 

mistake  in,  when  relieved,  152-166 
in  whose  favour  corrected,  161,  166,  178,  433 
cancellation  of,  when  decreed,  692-707 
lost,  relief  in  equity,  51-89,  906 

rEAES,  TEEMS  FOR,  998-1003 


THE  EASTERN   ERESS,  LTD.,  LONDON  AND  BEADING. 


KF  399  S88  1920 


Author 


A.E.   Randall 


Vol. 


TiiJc  Copy 

Story  on  Equity  ^  3rd  Ed 


Date 


Bonowec's  Name